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SPECIALTY LAW - Florida Family Law
Florida family law cases
Updated through September 10, 2005
The Main File, containing the full text of over 6,120 Florida family law cases dating back to 1950, is available on CD-ROM. Case coverage includes such toptics as divorce, bigamy, spoual abuse, dissolution, child support and visitation, spousal maintenance, alimony, child neglect and dependency, adoption and parental rights. The database features full word-phrase search capabilities, no on-line charges, monthly internet updates, retrieval of cases by title or citation, network capability, a separate file of recent cases and the ability to print individual cases or save them to a word processing file. Recent cases contained in the Supplemental File are available on this web site. See below for Case Summaries. Full-text of cases is available only to subscribers.
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Florida Family Law Case Summaries
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Florida Family Law Case Summaries
July 31 - September 10, 2005
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Dependent children
In re L.C., No. 2D04-819 (Fla.App. 08/12/2005)
These appeals involve the termination of the parental rights of three parties. The Mother, A.L.S., has five children: L.C., L.S., J.T., J.S., and R.S. These children have four different fathers. The trial court terminated the Mother's parental rights as to all five of her children. It also terminated the parental rights of the father, J.T., to his children, J.S. and J.T. Finally, it terminated the parental rights of the father, R.C., to his child, R.S. [¶] We affirm the terminations of the Mother and J.T. concerning the child, J.S., who has suffered at least two instances of severe abuse while in the Mother's care and who requires extraordinary care because of his medical conditions. Although we understand why the trial court concluded that the circumstances surrounding the treatment of J.S. would warrant the terminations of the Mother's parental rights to her remaining four children, we conclude that the record does not support those terminations at this time. There may be no particular need to terminate the Mother's parental rights to the oldest child, L.C., who apparently has been living successfully with her father for the last four years in another city. [¶] Because we reverse the terminations of the Mother's parental rights as to four of her children, L.C., J.T., L.S., and R.S., the terminations of parental rights for the two fathers must be justified as single-parent terminations. We conclude that the record does not justify such terminations.
D.B. v. Dep't of Children and Families, No. 4D05-849 (Fla.App. 09/07/2005)
Appellants, D.B., the mother (mother), and J.J., the father (father), each appeal from an Order Granting Termination of Parental Rights and Permanent Commitment. The minor children of the appellants are J.J. born May 4, 2000, and C.J. born August 10, 2001. These appeals have been previously consolidated for record purposes only. We now sua sponte consolidate the appeals for all other purposes including this opinion. [¶] We affirm the order appealed in all respects both as to the mother and father. We distinguish this case from this court's recently issued opinion in K.J. v. Department of Children & Family Services, No. 4D04-4299, 2005 WL 1630823 (Fla. 4th DCA July 13, 2005). In K.J. we held that the order was not supported by clear and convincing evidence.
A.A. v. Dep't of Children and Families, No. 5D04-3674 (Fla.App. 08/12/2005)
The issue we must resolve is whether substantial competent evidence exists in the record to support the trial court's dependency order finding that the corporal discipline administered to the child, C.M., by his brother, at the direction of the mother, A.A., was sufficiently excessive or abusive to cause harm. We reverse.
R.W. v. Dep't of Children and Families, No. 1D04-4853 (Fla.App. 08/16/2005)
Appellant, the offending mother of a dependent child, appeals the trial court's order changing her case plan goal from reunification, to placing the child in the permanent custody of his natural father, a non- offending parent. Appellant argues that, because the trial court found she substantially complied with her case plan and the case plan goal throughout the proceedings was reunification, section 39.701(9)(b), Florida Statutes (2004) mandates the court return the child to her. We affirm.
L.M. v. Dep't of Children and Families, No. 5D04-4007 (Fla.App. 08/26/2005)
In this appeal of a dependency order which placed a child into residential treatment, the child's counsel has moved to withdraw certifying that, after a conscientious review of the record, he has determined in good faith that there are no meritorious grounds on which to base an appeal. In considering the motion, we must determine whether the procedures applicable to criminal cases, as set forth in Anders v. California, 386 U.S. 738 (1967), are applicable to appeals of orders placing a child in residential treatment. We conclude, based upon the reasoning set forth in Pullen v. State, 802 So.2d 1113 (Fla. 2001), that such procedures do in fact apply and, accordingly, we defer ruling on counsel's motion to withdraw and instead direct counsel to file an Anders brief.
Dep't of Children and Families v. J.H., No. 5D04-2665 (Fla.App. 08/05/2005)
Department of Children and Families ["DCF"] seeks review of an order of the trial court that denied DCF's petition for termination of the parental rights of Respondents, J.H. and L.H., to J.H. and S.M. and orders J.H. immediately returned to the custody of J.H. and L.H., residing in Alabama.
Alimony
Stern v. Stern, No. 4D05-286 (Fla.App. 08/03/2005)
We affirm the trial court's order granting temporary alimony to the husband. This was a long-term marriage, and the parties were both in their eighties. The husband's net monthly income was approximately 25% of that of the wife, and both parties listed expenses in their financial affidavits which significantly exceeded their respective incomes. The husband had total assets of approximately $225,000, while the wife had total assets of approximately $175,000. At the temporary hearing, the trial court ordered the wife to pay temporary alimony to the husband which essentially equalized their respective incomes, but even the equalized amount did not cover the husband's expenses.
Pike v. Pike, No. 4D04-1861 (Fla.App. 09/07/2005)
In a dissolution of marriage case such as this one, in which alimony is required because of the disparity in income between the parties, the court must first determine the amount of alimony and then, considering alimony as income, determine the amount of child support. § 61.30(2)(a)9, Fla. Stat. (2004). Cornett v. Cornett, 713 So. 2d 1083 (Fla. 2d DCA 1998). In this case the trial court first determined the amount of child support, and then awarded only a dollar a month in permanent alimony. The court did this because it concluded that the mother would be better off if the entire award was child support, which would not be taxable to her. Although it is obvious from the record that the court was attempting to achieve the most beneficial financial result for both parties, the court erred in awarding alimony of only one dollar a month. As the court did in Cornett, we reverse and remand for the court to determine permanent periodic alimony, and then, taking that amount into account, calculating child support.
May v. May, No. 2D04-2608 (Fla.App. 08/10/2005)
The Mays' thirty-two-year marriage was dissolved on December 17, 2001. About a year later, Carolyn May (the Former Wife) filed a motion seeking to hold Jonathan May (the Former Husband) in contempt and to enforce the final judgment of dissolution. The Former Husband and the Former Wife ultimately entered into a mediation agreement to resolve some of their issues. Sometime later, the Former Husband filed a motion seeking modification of his alimony obligations. The Former Wife, in turn, filed a motion to enforce the mediation agreement. After holding an evidentiary hearing, the circuit court entered an extensive order denying the Former Husband's petition for modification and granting the Former Wife's motion to enforce from which the Former Husband appeals. We are unpersuaded by the numerous arguments the Former Husband raises and affirm the appeal. We write to address only the issue raised on cross-appeal.
Joseph v. Joseph, No. 1D04-1746 (Fla.App. 08/19/2005)
The former husband, Richard W. Joseph, appeals the trial court's final order of dismissal of his "Amendment to Additional Supplemental Petition to Modify Alimony Provisions of the Amended Final Judgment and Orders Related Thereto." In Case No. 1D03-1510, the former husband appealed the dismissal of his previous petition to modify alimony. Concluding that the trial court was not jurisdictionally barred from considering the petition to modify under Florida Rule of Appellate Procedure 9.600(c) and, thus, had erred in dismissing it, we reversed and remanded for further proceedings. See Joseph v. Joseph, 881 So. 2d 66 (Fla. 1st DCA 2004). The parties rightfully concede on appeal that Case No. 1D03-1510 controls the instant proceedings. We had not issued our decision, id., when the trial court issued the dismissal order now challenged by the former husband. Because the trial court had jurisdiction to consider the amended supplemental petition, we REVERSE the dismissal order and REMAND for further proceedings.
Child support
Spalding v. Spalding, No. 5D04-2324 (Fla.App. 08/05/2005)
Lillian Spalding ("the Former Wife") challenges the trial court's order suspending George Spalding's ("the Former Husband") child support obligation and abrogating his duty to maintain a life insurance policy to secure the support obligation unless a meaningful relationship between the Former Husband and child is established. We reverse and remand with directions.
Schram v. Schram, No. 4D04-1622 (Fla.App. 09/07/2005)
This is an appeal by Jack Schram, former husband, from an Amended Final Judgment of Dissolution of Marriage. Former husband raises two issues on appeal. We affirm in part, reverse in part, and remand to the trial court for further proceedings. [¶] First, former husband claims that the trial court erred in imputing income to him for the purpose of awarding child support and requiring the repayment of funds. Second, former husband argues the trial court erred in awarding sole parental responsibility to former wife and in limiting his visitation.
Orsini v. Orsini, No. 4D04-3392 (Fla.App. 08/31/2005)
The former husband appeals a contempt order requiring him to pay child support arrearages. He argues the court erred in rejecting his laches defense, and in ordering him to pay arrearages without considering his ability to pay. We affirm the court's ruling on the laches defense, but reverse the order and remand the case to the trial court to make the requisite finding of the former husband's ability to pay.
Harwood v. Li, No. 4D04-1872 (Fla.App. 08/10/2005)
The former husband appeals the trial court's denial of his supplemental petition for modification of child support. His petition was based in part on his substantial time sharing with the minor child. We reverse, because the trial court erred in ruling that it cannot, as a matter of law, retroactively apply section 61.30(11)(b), Florida Statutes (2003), which mandates adjusting a child support award when a child spends a substantial amount of time with each parent.
Carr v. Sharkey, No. 5D04-3046 (Fla.App. 08/26/2005)
Steven Carr appeals the trial court's non-final order denying his motion to dismiss this action for lack of personal jurisdiction. Concluding that the record provided by Carr is insufficient to support a reversal, we affirm. [¶] Steven Carr and Denise M. Sharkey were divorced in New York. The parties have one minor child who is subject to the final judgment of dissolution. A consent order of support was entered by the family court of the state of New York. In the order, the parties agreed that Carr would pay Sharkey child support in a set amount and that in no event would the child support increase above that amount. The order recognized that the amount agreed to by the parties deviated from New York's Child Support Standards Act for a variety of reasons, including the fact that Carr agreed to pay the child's college and other expenses, and that he would have increased costs associated with visiting the child since Sharkey was relocating to Florida. [¶] After moving to Florida, Sharkey filed a petition to domesticate the New York judgment. Carr answered and consented to the domestication of the order. [¶] Thereafter, Sharkey filed a supplemental petition in Florida seeking modification of Carr's child support obligation. Specifically, the motion requested that the amount of Carr's child support be increased to reflect Florida's statutory guidelines. Carr filed a motion to dismiss the petition and to quash service of process claiming, among other things, that Florida lacked personal jurisdiction over him because he was a resident of Massachusetts and had never been a resident of Florida. He further alleged that he did not have any ties or contacts with Florida
Hecht v. Hecht, No. 1D04-4341 (Fla.App. 08/04/2005)
Appellant, Joseph D. Hecht, appeals the circuit court's order granting his Supplemental Petition for Modification of Child Support to the extent that the court refused to apply the substantial parenting formula provided for in section 61.30(11)(b), Florida Statutes (2002), in calculating his child support obligation. Because we agree that the circuit court was required to apply the substantial parenting formula after finding that appellant has his three children for approximately forty percent of the overnights, we reverse.
Emmons v. Dep't of Revenue, No. 1D04-2344 (Fla.App. 08/23/2005)
Appellant seeks review of a final order dismissing as untimely her request for an administrative hearing regarding a prior determination by the Department of Revenue that she had received an overpayment of child support. Because the hearing officer applied an incorrect rule in concluding that appellant's hearing request was untimely, we reverse and remand for further proceedings.
Kincade v. Sanders, No. 5D04-2187 (Fla.App. 08/19/2005)
Bobby Kincade appeals the trial court's order denying his motion to dismiss Diann Sanders's Petition for Modification of an earlier child support order. We dismiss for lack of jurisdiction. Only those non-final orders set forth in Florida Rule of Appellate Procedure 9.130(a)(3) are appealable. The proper method to seek review of the subject order is by a petition for writ of prohibition. Prohibition can be used to restrain the improper exercise of jurisdiction. See State ex rel Chiles v. Public Employees Relations Comm'n, 630 So. 2d 1093, 1094 (Fla. 1994); Dep't of Children & Families v. J.J.E., 901 So. 2d 215, 216 (Fla. 5th DCA 2005). However, even if we were to treat Kincade's appeal as a petition for a writ of prohibition, we would deny it. The pleading deficiencies Kincade alleges are, at most, minor violations of the rules of civil procedure. Such violations, even if they exist, do not deprive the circuit court of subject matter jurisdiction over this modification of child support petition. We conclude that the other issues raised by Kincade are not subject to review at this time.
Child custody; Visitation
Perez v. Giledes, No. 4D05-763 (Fla.App. 08/24/2005)
Orlando Perez (Father) is the undisputed father of a five-year-old child born in Florida. Father claims that Georgia is the home state of the child and challenges the jurisdiction of the Florida court to grant an emergency child pick-up order. There has been no adjudication of Father's paternity, but Father's parental status appears on the child's birth certificate. We affirm.
Rodriguez v. Williams, No. 3D04-982 (Fla.App. 08/17/2005)
Appellant Maria Esther Rodriguez seeks to reverse the Final Judgment of Paternity, Primary Residence of minor Child, Timesharing and Child Support and the Amended Final Judgment of Paternity, Primary Residence of minor Child, Timesharing and Child Support rendered by the trial court in favor of appellee Anthony D. Williams. We affirm.
Pierandozzi v. Perry, No. 4D03-4175 (Fla.App. 08/03/2005)
Jennifer Pierandozzi, the mother, appeals from the trial court's order granting primary residential custody of the parties' daughter to the father, Michael Perry. Both parties filed petitions for custody subsequent to a dependency proceeding upon which the court placed the child with the father and granted visitation to the mother.
Baumgardner v. Vercillo, No. 5D05-2110 (Fla.App. 08/26/2005)
Dennis J. Baumgardner (father), has filed a petition with this court seeking a writ of certiorari or a writ of habeas corpus regarding the trial court's non-final order which directed that his children stay in the custody of their stepfather until further order of court. For the reasons set forth below, the petition is denied without prejudice to the father seeking appropriate relief below.
Allocation of Property
Romeo v. Romeo, No. 2D04-554 (Fla.App. 08/10/2005)
Beverly Ann Romeo challenges a summary final judgment of dissolution of her marriage to James John Romeo. We reverse.
Ospina-Baraya v. Heiligers, No. 4D05-132 (Fla.App. 08/24/2005)
Juan Diego Ospina-Baraya appeals the trial court's order enforcing a marital settlement agreement incorporated in a final judgment of dissolution and accepting in part and rejecting in part a Domestic Relations Commissioner's interpretation of the agreement. Based on our interpretation of the relevant provisions of the agreement, we affirm in part and reverse in part.
Held v. Held, No. 4D04-1432 (Fla.App. 09/07/2005)
The major issue we address in this dissolution case is whether the trial court correctly valued the goodwill in an insurance agency as part of the equitable distribution of the assets of the marriage. We hold that the trial court erroneously included aspects of the husband's personal goodwill in its valuation of the business's enterprise goodwill contrary to the requirements of Thompson v. Thompson, 576 So. 2d 267 (Fla. 1991).
Rasmussen v. Rasmussen, No. 2D04-3679 (Fla.App. 09/07/2005)
Dennis L. Rasmussen, the husband, appeals the final judgment adjudicating property rights entered in connection with the dissolution of his marriage to Janet Rasmussen, the wife. The husband challenges the equitable distribution of assets, which was based on the trial court's determination that a handwritten note made by the husband was effective to make a gift of all the husband's assets to the wife. Because the note did not express a present intent to transfer the husband's property to the wife, we conclude that it was not effective as a gift of that property and thus the property did not become marital property subject to equitable distribution. We therefore reverse the final judgment's distribution of the parties' assets. The remaining portions of the final judgment are not challenged on appeal and are therefore affirmed.
Proceedings
Solmo v. Friedman, No. 4D04-4674 (Fla.App. 08/31/2005)
Appellant, Thomas Alan Solmo, timely appeals a final order denying motion to vacate final judgment and denying motion to vacate supplement to final judgment in a marriage dissolution proceeding. For the reasons explained herein, we affirm in part and reverse in part.
Chivari v. Ferrell, No. 4D04-1366 (Fla.App. 08/31/2005)
Appellant wife argues that the final judgment of dissolution of marriage is per se reversible because the judgment was supplied to the court by the husband. She relies on Perlow v. Berg-Perlow, 875 So. 2d 383 (Fla. 2004), which we find distinguishable.
Attorney's fees
Franklin & Criscuolo/Lienor v. Etter, No. 3D03-2823 (Fla.App. 08/17/2005)
This appeal seeks to review an order of the trial court which gave priority to the payment of fees incurred by a guardian ad litem over those incurred by the former wife's counsel that had been secured by an earlier charging lien. We affirm the lower court's decision giving preference for payment to the guardian on the facts of this case, but because this is a case of first impression, we will afford the attorneys the opportunity to contest the reasonableness of the guardian ad litem bill for the reasons set forth below.
Caldwell v. Finochi, No. 2D04-5311 (Fla.App. 09/09/2005)
Todd Caldwell, the Former Husband, seeks review of the trial court's order awarding Donna Lee Finochi, the Former Wife, attorney's fees in a post-dissolution proceeding. The Former Husband argues that the trial court erred in awarding fees because the Former Wife failed to file a timely motion pursuant to Florida Rule of Civil Procedure 1.525. We agree and reverse.
Florida Family Law Case Summaries
June 26 - July 30, 2005
Click on case name to access full text
Dependent children
T.M. v. Dep't of Children and Families, No. 4D04-4750 (Fla.App. 06/29/2005)
A father appeals the termination of his parental rights to C.S. The trial court terminated his rights under section 39.806(1)(c) and (e), Florida Statutes. Because there was no evidence to support termination under section (c), and the Department failed to offer any services to the father to comply with the case plan tasks, we must reverse.
K.J. v. Dep't of Children and Family Services, No. 4D04-4299 (Fla.App. 07/13/2005)
The mother appeals a final order terminating parental rights to her daughter, K.J., based upon her failure to substantially comply with the case plan. We reverse, because the order is not supported by clear and convincing evidence.
Alimony
Griffin v. Griffin, No. 2D04-1877 (Fla.App. 07/27/2005)
This is an appeal from a judgment dissolving a marriage. Michael Lee Griffin, the Husband, challenges the trial court's imputation of income and the amount of permanent periodic alimony awarded to him. The trial court erred in imputing full-time income to the Husband without finding that he could hold a full-time job. Additionally, the alimony award appears inadequate in light of the Husband's claimed needs and the Wife's ability to pay. Accordingly, we reverse for reconsideration of the amount of income to impute and the amount of alimony to be awarded to the Husband.
Nichols v. Nichols, No. 4D03-4461 (Fla.App. 07/27/2005)
The Former Wife appeals a final judgment of dissolution of marriage claiming the trial court erred by failing to: (1) award permanent periodic alimony; (2) apply interest payments to a delayed equitable distribution plan; and (3) require the Former Husband to maintain life insurance to guarantee payment of his obligations. The Former Husband cross-appeals, complaining that the trial court erred in computing the value of his business asset. We affirm in part, reverse in part, and remand with instructions.
Child support
Navarro v. Navarro, No. 4D04-4752 (Fla.App. 07/13/2005)
The former husband appeals a contempt order entered upon the former wife's motion for contempt for nonpayment of support. Because we conclude that the obligation in question was a property settlement, rather than a support order enforceable by contempt, we reverse.
Kinzer v. Bickerstaff, No. 5D03-2696 (Fla.App. 07/08/2005)
Creighton L. Kinzer ("Kinzer") appeals an order amending the final judgment dissolving the marriage between him and Bobbie Jo Bickerstaff ("Bickerstaff"). Kinzer and Bickerstaff obtained a simplified dissolution of marriage and in their petition they alleged that there were no children born or expected from the marriage. Both knew this to be inaccurate. Years later, the Department of Revenue ("DOR"), on behalf of Bickerstaff, sought to amend the judgment to state that there was a child born of the marriage and that the judgment should be amended to state that there was a child and that Kinzer was obligated to provide child support. Kinzer opposed the petition and requested DNA testing to prove that he was not the father of the child. The DOR opposed the motion. The trial court ruled that the presumption that Kinzer was the father had not been overcome and denied Kinzer's motion to order DNA testing. . . ., we reverse the decision of the trial court and remand with directions to order DNA testing.
McCants-Collie v. Collie, No. 4D03-1125 (Fla.App. 07/27/2005)
Appellant, Sharon McCants-Collie, appeals the Final Judgment of Dissolution of Marriage raising as her sole issue on appeal that the trial court erred in calculating child support because the support obligations were based on an incorrect income figure for the husband. We agree and reverse and remand for a new hearing to recalculate child support.
Allen v. Hall-Allen, No. 4D04-587 (Fla.App. 07/06/2005)
A father appeals the trial court's order requiring him to pay child support entered after a post-dissolution proceeding in which the father had requested visitation with his child. The order recites that the issue of child support was heard on the court's own motion at the same time it awarded the father visitation. There is no order by which the court set the support issue for hearing or alerted the father that the issue of child support would be addressed. Because his right of due process was violated by the court's failure to give him notice that the issue would be considered, we reverse.
Hanley v. Hanley, No. 4D04-731 (Fla.App. 06/29/2005)
The sole issue raised in this appeal from a final judgment of dissolution of marriage is whether the lower court erred in calculating the child support payments due from the former husband. As conceded by the former husband, a clerical error exists in the child support worksheet. Upon remand, the worksheet must be corrected to show the former wife as having the majority of overnights and the child support payments must be recalculated accordingly.
Roberts v. Roberts, No. 4D04-2126 (Fla.App. 07/20/2005)
The former wife appeals the trial court's findings that temporary alimony and child support were excessive and its award of a credit for the overpayment. In approving this overpayment credit, we follow our decision on this same issue in Flores v. Flores, . . . We find the former wife's other arguments to be without merit.
Child custody; Visitation
Hansen v. Hansen, No. 3D03-2016 (Fla.App. 07/13/2005)
The parties, Karl Hansen [former husband] and Elisabeth Hansen [former wife] were divorced in 1998. Prior to entry of final judgment, the parties agreed upon shared parental responsibilities and the former wife became the primary residential parent. The mediated settlement agreement specified that the former husband has visitation every weekend and certain holidays, and all long weekends are alternated between the parents. The issues left unresolved are whether the former wife could have one weekend a month visitation, and which parent would pick up and return the child on Sundays after visitation, as the father lives in Coral Gables and the mother lives in Ft. Lauderdale. The child is now ten years old.
Hembree v. Thomas, No. 1D04-2160 (Fla.App. 07/05/2005)
Appellant, the former husband, challenges an order of the trial court awarding temporary primary residential custody to the former wife. Appellant raises several issues on appeal, only one of which we need to address: whether the trial court reversibly erred by changing primary custody from the father to the mother without an evidentiary hearing concerning the best interests of the child. We agree with appellant and reverse for an evidentiary hearing.
Volpe v. Saussy, No. 5D04-3421 (Fla.App. 07/22/2005)
Ambroshia M. Volpe, appeals the final judgment of dissolution rendered by the trial court. Although Ms. Volpe contends that the trial judge was not impartial during the trial of this cause, our careful review of the record leads us to conclude that the trial judge was even handed in his handling of this contentious matter. We note, as well, that Ms. Volpe did not seek the recusal of the trial judge or otherwise attack the impartiality of the trial judge below. In addition, we find no denial of due process in connection with the award of custody of the child of this marriage. Accordingly, we affirm.
Dees v. Dees, No. 1D05-1414 (Fla.App. 07/05/2005)
James Ted Dees seeks to appeal an order denying his motion to prevent relocation of Margaret Dawn Dees, the former wife, and the parties' minor child. In the order for which review is sought, the trial court finds that it is in the child's best interests to allow relocation. Having considered the appellant's responses to this Court's orders of April 5, 2005 and May 5, 2005, this appeal is hereby dismissed as premature because the trial court has retained jurisdiction over the related issue of visitation. . . . . Further, the order does not determine child custody and, thus, is not an appealable non-final order under rule 9.130(a)(3)(C)(iii), Florida Rules of Appellate Procedure.
Paternity
Sanchez v. Fernandez, No. 4D04-2544 (Fla.App. 07/27/2005)
Appellant, Maria Julieta Sanchez, appeals a final order dismissing with prejudice her action against appellee, Jesus Antonio Fernandez, for lack of subject matter jurisdiction, pursuant to section 61.506(1), Florida Statutes (the "UCCJEA"). We reverse. [¶] On or about February 6, 2004, Sanchez filed a petition for adjudication of paternity and awards of custody and child support. The petition pled that the minor child was born in Bogota, Colombia, and that Sanchez and the minor child reside in Bogota, Colombia. Fernandez is alleged to be a resident of Broward County - an allegation he does not deny. The trial court dismissed the petition with prejudice for lack of subject matter jurisdiction pursuant to the UCCJEA.
Allocation of Property
Rogers v. Rogers, No. 2D04-50 (Fla.App. 07/20/2005)
Christopher Allen Rogers, the husband, appeals a final judgment of dissolution of marriage. We must reverse because the final judgment granted relief which was not sought by the wife, Victoria B. Rogers, in her petition for dissolution of marriage.
Parnama v. Parnama, No. 4D04-4421 (Fla.App. 07/27/2005)
In this pending dissolution of marriage action, the trial court entered an order directing the wife to deposit one-half of the proceeds of the sale of the husband's former residence into her attorney's trust account. The husband acquired the residence long before the marriage, but the property was later titled solely in the wife's name. The sum was to be held pending the determination of ownership of the proceeds in the dissolution action. We affirm.
Bitz v. Bitz, No. 04-2249 (Fla.App. 07/06/2005)
This is an appeal from a non-final order of the circuit court finding a portion of the parties' marital settlement agreement to be ambiguous and ordering the division of real property. We have jurisdiction. Art. 5, § 4 (b)(1), Fla. Const.; Fla. R. App. P. 9.130(3)(C)(ii). We affirm in part, reverse in part, and remand.
Proceedings
Yitzhari v. Yitzhari, No. 04-337 (Fla.App. 07/27/2005)
Iris Yitzhari appeals from a Final Judgment of Dissolution of Marriage, complaining that the judgment is both contrary to the law and an abuse of discretion in many of its determinations. The wife also claims entitlement to a new trial because the inordinate delay (thirteen months) in issuing the final judgment, coupled with the substantial inconsistencies and deficiencies in the judgment, indicate that something is seriously amiss on the merits. For the following reasons, we agree with the wife and remand for a new trial.
Fisher v. Bond, No. 3D05-781 (Fla.App. 07/27/2005)
Carmen Marie Fisher, the wife, appeals from a non-final order denying her a hearing on temporary issues. Because the trial court abused its discretion in requiring that the wife be available for a deposition before granting her a hearing on temporary support, we reverse and remand.
Levenshon v. Levenshon, No. 3D05-267 (Fla.App. 07/20/2005)
The voluntary dismissal pursuant to Florida Rule of Appellate Procedure 9.350(b) is recognized by the court.
Durkee v. Durkee, No. 4D04-3563 (Fla.App. 06/29/2005)
This is a non-final appeal from an order denying Mr. Durkee's motion to dismiss asserting insufficient service of process and lack of personal jurisdiction. He argues that, because he is a Texas resident, and his activities in Florida do not satisfy due process or the Florida long arm statute, his motion to dismiss should have been granted. He was, however, personally served while he was present in Florida, which makes his argument involving the long arm statute and due process irrelevant. We affirm.
Manucy v. Yurgalewicz, No. 1D05-2364 (Fla.App. 07/21/2005)
Upon consideration of the appellant's Motion to Hold in Abeyance, which the Court treats as a response to its show cause order of June 7, 2000, the Court has determined that the appellant has failed to demonstrate that the order on appeal is a final order or otherwise appealable non-final order. [¶] An order dissolving the marriage but reserving jurisdiction over issues such as child support, child custody, alimony and/or property issues, is not final. . . .. Thus, the order on appeal, which retains jurisdiction to determine personal property distribution in the event of a disagreement between the parties, is a non-final order. For this reason, the appeal is hereby dismissed. The appellant's Motion to Hold in Abeyance is denied.
Wilson v. Wilson, No. 1D05-1962 (Fla.App. 07/15/2005)
Upon consideration of the appellant's response to the Court's order of May 31, 2005, the Court has determined that the appellant has failed to demonstrate that the order on appeal is a final order or otherwise appealable non-final order. [¶] An order dissolving the marriage but reserving jurisdiction over issues such as child support, child custody, alimony and/or property issues, is not final. . . . . In addition, an order which purports to become final upon the happening of an event specified in the order is not a final order and the happening of the event does not operate to render the order final. . . . . Therefore, the order is not rendered final by the happening of an event contemplated by the reservation of jurisdiction. Specifically, the mere expiration of the 60-day retention does not render the order final. Thus, the order on appeal, which retains jurisdiction to determine property distribution in the event of a disagreement between the parties, is a non-final order. For this reason, the appeal is hereby
Kemmet v. Kemmet, No. 1D05-1601 (Fla.App. 07/21/2005)
Having considered the appellant's response to this Court's order, dated May 9, 2005, the appeal is hereby dismissed for lack of jurisdiction. The order on appeal is neither a final order nor a non-final order appealable pursuant to Florida Rule of Appellate Procedure 9.130. . . . . Specifically, the order on appeal made findings of fact as required by this Court's opinion in Kemmet v. Kemmet, . . . , but failed to enter judgment on those findings. Where a portion of a dissolution of marriage judgment has been reversed, it is as if that part of the order had never been entered. Savery, . . . . Therefore, the finding in the instant order that there is no "demonstrated need of the Wife for additional spousal support over and above that awarded in the Final Judgment" is insufficient to conclude the judicial labor in this case.
Cargile-Schrage v. Schrage, No. 4D04-651 (Fla.App. 07/20/2005)
A spouse appeals a final judgment of dissolution of marriage, complaining that the trial court's denial of her motion for a continuance effectively prevented her from presenting her case at trial. We find no abuse of discretion.
Attorney's fees
Lashkajani v. Lashkajani, No. SC03-1275 (Fla. 06/30/2005)
In this case, we consider the enforceability of a prevailing party attorney's fees provision in a prenuptial agreement. The Second District Court of Appeal certified the following question of great public importance: "May the parties, by express provision in a prenuptial agreement, contract away a future obligation to pay attorney's fees and costs during the term of the marriage by providing for prevailing party attorney's fees in actions seeking to enforce or prevent the breach of the prenuptial agreement?" . . . We have discretionary jurisdiction and granted review. . . . For the reasons explained below, we answer the certified question in the affirmative.
Domestic Violence
Coleman v. Coleman, No. 3D05-1695 (Fla.App. 07/27/2005)
Helen Greene Coleman petitions for a writ of prohibition. We conclude that the petition is well taken and grant it. [¶] The husband, Nathan Coleman, filed a petition for a domestic violence injunction against his wife, Helen Greene Coleman, under section 741.30, Florida Statutes (2004). The wife responded by filing a petition for domestic violence injunction against the husband. The husband also filed a petition for dissolution of marriage. [¶] The trial court conducted an evidentiary hearing on both petitions for injunction and denied them. The court went on to enter an order in the husband's injunction case which granted exclusive use and possession of the marital residence to the husband. [¶] The wife has petitioned for a writ of prohibition, contending that once the trial court denied the husband's petition for injunction, the trial court was without jurisdiction to enter an order for exclusive use and occupancy in the husband's injunction case. We agree.
Sanchez v. Alviar, No. 4D04-1899 (Fla.App. 07/27/2005)
Raquel Alviar sought an injunction against Mario Sanchez for protection against domestic violence. The trial court set the matter for a hearing without entering a temporary injunction. The trial court later conducted a hearing, at which no evidence was taken, and entered an injunction prohibiting Sanchez from contacting Alviar or going within 500 feet of her residence for six months. The final judgment also gave Alviar temporary custody of all five of the parties' minor children. Prior to the entry of the injunction, two of the children were living with Sanchez pursuant to an arrangement between the parties. [¶] On appeal, Sanchez argues that his due process rights were violated when the trial court changed temporary custody of the children without conducting an evidentiary hearing. . . . In the instant case, the trial court did not grant Alviar an ex parte temporary injunction based on her petition. Instead, the court scheduled and conducted a hearing, although not a full hearing in that the trial court did not take evidence, and subsequently granted Alviar short-term relief in the form of a six-month injunction. The statute does not contemplate relief beyond an ex parte temporary injunction without a full evidentiary hearing. . . .. The trial court's six-month injunction was beyond what the statute permits to be granted without a full evidentiary hearing. Accordingly, we reverse and set aside the injunction.
Florida Family Law Case Summaries
May 22 - June 25, 2005
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Dependent children
In re D.A.D., No. 2D04-4623 (Fla.App. 06/17/2005)
D.A.D. (the Father) appeals the order terminating his parental rights to his children, D.A.D. II, a four-year-old boy, and R.E.D., a girl who turned three years old just before the order was entered. Although we disagree with the trial court's conclusions in some respects, we commend the trial court's thorough consideration of this troubling case and affirm the order terminating parental rights.
I.R. v. Dep't of Children and Family Services, No. 3D04-2725 (Fla.App. 06/15/2005)
I.R., the natural mother, appeals the trial court's order terminating her parental rights as to her minor child, C.R, pursuant to section 39.806(1)(c), Florida Statutes (2003). We reverse because the trial court's finding that the mother's continuing involvement with the child threatened the child's well-being or life pursuant to section 39.806(1)(c), Florida Statutes (2003), was not supported by clear and convincing evidence.
C.W. v. Dep't of Children & Family Services, No. 3D04-1382 (Fla.App. 06/15/2005)
C.W., the natural mother, appeals the trial court's order of dependency, the order of disposition and acceptance of case plan, and the order denying her motions for new trial and/or rehearing. We affirm concluding that the trial court did not abuse its discretion in any of its rulings, and that the court's dependency order was well supported by competent and substantial evidence.
In re S.M.A.L., No. 2D04-1704 (Fla.App. 05/27/2005)
S.K.R., the legal father of S.M.A.L., challenges an order terminating his parental rights to his child, S.M.A.L. Because the trial court erred in holding that the Legal Father had no standing to contest the termination, we reverse.
S.P. v. Dep't of Children and Families, No. 4D04-4619 (Fla.App. 06/22/2005)
S.P. was sixteen years old and in foster care when she became pregnant. The baby was born on February 19, 2002. The following day, The Department of Children and Families (DCF) filed an Affidavit and Petition for Placement in Shelter, alleging that S.P. was in foster care, had no income, and had run away from her foster home twice during her pregnancy. The court granted the petition, removed the baby from S.P., and placed him in shelter with the paternal grandmother.
T.V. v. Dep't of Children & Family Services, No. 3D04-32 (Fla.App. 06/22/2005)
T.V., the natural mother, appeals the trial court's order terminating her parental rights as to her three children, pursuant to section 39.01(45), Florida Statutes (2002). We find clear and convincing evidence that the mother's continuing involvement with the children threaten the children's lives or future well-being pursuant to section 39.806(1)(c), Florida Statutes (2002), and therefore affirm the trial court's findings and conclusions.
D.G. v. Dep't of Children and Families, No. 5D04-2524 (Fla.App. 06/17/2005)
In this dependency case, the lower court changed custody of the minor child to the child's father pursuant to section 39.521(3)(b), Florida Statutes (2005). At the time of the order transferring custody, however, the mother had substantially complied with her case plan, which had the sole goal of reunification of the child with the mother. Based on this fact, the court's change in custody was erroneous in the absence of a determination that reunification would be detrimental to the child. . . .
Alimony
Dervishi v. Dervishi, No. 4D04-1066 (Fla.App. 06/08/2005)
The former husband appeals a modification order that temporarily decreased his alimony payments, but only retroactively. He argues the trial court erred in refusing to: (1) apply the downward modification prospectively; and (2) award him attorney's fees. The former wife cross-appeals the downward modification order. For the reasons that follow, we reverse the modification order and remand the case to the trial court for further proceedings.
Bagienski v. Bagienski, No. 4D04-290 (Fla.App. 06/08/2005)
We affirm the Final Judgment appealed on all issues raised. We write only on the entitlement to permanent periodic alimony holding that appellee, wife, has the present need for permanent periodic alimony and appellant, husband, has the present ability to pay.
Child support
Busman v. State, Dep't of Revenue, No. 3D04-2553 (Fla.App. 06/22/2005)
Jacob W. Busman appeals the denial of his Verified Motion to Set Aside and To Vacate Final Judgment on Complaint to Establish Paternity and Award of Child Support and Demand for DNA Testing. Because Busman was not properly served with process, we reverse.
Long v. Long, No. 2D04-1288 (Fla.App. 06/08/2005)
Leonard Long (the husband) appeals from the order requiring him to pay temporary child support. He argues that the trial court erred in proceeding with the temporary support hearing and determining his support obligations without sufficient evidence of the parties' current financial status and without a child support guidelines worksheet. We agree and reverse.
Child custody; Visitation
Wade v. Hirschman, No. SC04-1012 (Fla. 05/26/2005)
We have for review Wade v. Hirschman, . . . , which expressly and directly conflicts with the decision in Cooper v. Gress, . . . We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. At issue is the test courts should use in proceedings to modify rotating custody agreements. The conflict to be resolved is whether the trial court should base modification of rotating custody agreements on the considerations set forth in section 61.13, Florida Statutes (2003), as if it were making an initial custody determination as the Fifth District Court of Appeal held in Wade, or whether the trial court should utilize the "substantial change test," as the First District Court of Appeal held should be used in Cooper. For the reasons set forth below, we conclude that the substantial change test as used in Cooper applies to modification of all custody agreements.
Jensen v. Jensen, No. 4D04-2763 (Fla.App. 06/22/2005)
We hold that the trial court erred in permitting former wife to relocate with the minor children out of Broward County to Brevard County, without properly considering the six statutory factors necessary before relocation could be granted. See § 61.13(2)(d), Fla. Stat. (2004).
Ducharme v. Ducharme, No. 2D03-5651 (Fla.App. 06/22/2005)
Debra R. Ducharme, the Former Wife, seeks review of the second amended final judgment of dissolution of marriage. We find merit in the Former Wife's contention that the trial court abused its discretion in requiring a written order or consent of the parties prior to the removal of the minor child from the state for greater than ten days. The Former Wife currently resides in New York, and this requirement will interfere with the visitation schedule ordered by the court in which each parent is allotted two continuous two-week periods with the child during the summer. Accordingly, we reverse for the court to strike that requirement from the second amended final judgment. We affirm the remainder of the judgment without discussion.
Paternity
Lander v. Smith, No. 4D04-1547 (Fla.App. 06/15/2005)
Mark Lander seeks to establish paternity over a child he fathered with Carolyn Smith while she was married to, but separated from, Adam Meyers. The trial court granted a motion to dismiss and a summary judgment based mainly on Florida's presumption of legitimacy regarding children born during an intact marriage. Lander appeals contending that the presumption of legitimacy should not bar him from establishing paternity under the facts of this case. We agree and reverse.
Belk v. McKaveney, No. 2D05-379 (Fla.App. 06/10/2005)
Deborah Belk, the Mother, seeks review of the trial court's "Order on Guardian Ad Litem's Motion for Reconsideration; Order on Respondent's Motion for Reconsideration, and Order on Respondent's Motion to Set Aside Final Judgment" in this paternity action with the Father, James McKaveney. The Mother challenges that portion of the order that sets aside the August 9, 2004, supplemental final judgment. Because the trial court erred in granting the Father's "Motion to Set Aside Final Judgment" based on newly discovered evidence, we reverse as to that portion of the order and remand for the trial court to reinstate the supplemental final judgment. We affirm as to the remainder of the order.
Allocation of Property
Dorsett v. Dorsett, No. 4D04-74 (Fla.App. 06/08/2005)
This appeal arises from a Final Judgment of Dissolution of Marriage. For the reasons explained herein, we hold that the trial court erred by adopting the parties' purported oral agreements regarding the use and possession of the former marital home and the former husband's child support obligation. The trial court also erred by distributing the parties' assets without complying with the requirements of section 61.075, Florida Statutes. We find no error, however, in the trial court's requirement that the former wife contribute toward the mortgage during her period of exclusive use and occupancy of the former marital home. Accordingly, we affirm in part, reverse in part, and remand.
Brill v. Brill, No. 4D03-882 (Fla.App. 06/22/2005)
Mary Brill appeals three postjudgment orders enforcing the provision of a final judgment that directed the marital home be sold when the youngest child reached majority. She contends the trial court entered the first two orders without notice and without full review and entered the third order, which is an order of contempt based upon the previous orders, without considering her objection. We affirm all three orders.
Macci v. Macci, No. 4D03-2192 (Fla.App. 05/25/2005)
This is an appeal of a final judgment of dissolution in which the dissolution proceedings have now lasted longer than the marriage. The trial court prepared a detailed final judgment dividing the parties' assets and liabilities, denying alimony, and setting child support for the former husband. The wife appeals almost every aspect of the final judgment. We affirm as to most aspects of the judgment, reversing for reconsideration of only minor issues of equitable distribution and credit for child medical expenses.
Magri v. Magri, No. 1D04-1745 (Fla.App. 06/20/2005)
John James Magri, IV, appeals a final judgment of dissolution of marriage arguing that the trial court erred in making an unequal distribution of marital assets to his former wife, Deborah Brennan Magri, appellee. As a general rule, under section 61.075(1), Florida Statutes (2002), marital assets should be distributed equally. Nevertheless, "[t]he trial court may make an unequal distribution of assets, provided the court supplies a specific finding of fact to justify its unequal distribution." . . . Here, the trial court made more than adequate findings to support the unequal distribution, including the distribution of the former wife's vested and unvested stock options, and the findings are supported by competent substantial evidence in the record. Accordingly, we affirm all issues raised on appeal.
Proceedings
In re Amendments to the Florida Family Law Rules of Procedure, No. SC04-1751 (Fla. 06/02/2005)
The Florida Bar's Family Law Rules Committee has filed a petition proposing amendments to the Florida Family Law Rules of Procedure based on a request from this Court that the committee propose "fast track" rule amendments in response to the 2004 Florida Legislature's amendment of various Florida Statutes. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.130(f).
Self v. Self, No. 2D04-1486 (Fla.App. 06/10/2005)
Linda Gayle Self, the Former Wife, appeals the final summary judgment entered against her in proceedings initiated to address her motion to modify the Qualified Domestic Relations Order ("QDRO") that was entered in conjunction with the parties' final judgment of dissolution of marriage. We reverse.
D'Angelo v. D'Angelo, No. 2D04-3689 (Fla.App. 06/15/2005)
Laura D'Angelo, the Wife, appeals the circuit court's order denying her motion for enlargement of time and striking her motion for an award of attorney's fees. We reverse.
Contempt
Cruz v. Domenech, No. 3D04-2373 (Fla.App. 06/15/2005)
Aileen Cruz, the mother, now known as Aileen LaRossa, appeals an order denying her motion to alter or amend final judgment or relief from judgment. She also appeals a finding of contempt by the trial court. We affirm the order denying the mother's motion to alter or amend final judgment or relief from judgment, but reverse the finding of contempt. [¶] The parties are parents to a minor child who was the subject of a prior paternity action. In 2000, a final judgment of paternity was entered that incorporated a settlement agreement. The settlement agreement designated the mother as the primary residential parent and provided that the parents would share parental responsibility. However, the agreement provided that in the event of an impasse, the mother would have the ultimate decision-making authority. The parties negotiated another agreement in 2002, but did not have it ratified by the court. In June 2003, the father filed a petition for modification of custody, which he amended in September 2003. In the amended petition, the father asserted that instead of sharing parental responsibility, the mother had been making unilateral decisions detrimental to the child. . . . The father asked the court, among other remedies, to award him primary residential custody of the child. After a four-day evidentiary hearing, the trial court entered an order modifying the final judgment of paternity, which, in part, gave the father the ultimate decision-making authority in regard to the child's educational and medical needs. The trial court also found the mother in contempt for unilaterally transferring the child to another school. . . .
Attorney's fees
Carta v. Carta, No. 3D04-3113 (Fla.App. 06/08/2005)
The husband, Edgar Carta, appeals from non-final orders denying his motion to dismiss for lack of subject matter jurisdiction and denying his motion for relief from an order to break his safe deposit box to satisfy previous court orders granting interim attorney's fees and costs to the wife, Emma Carta. We affirm.
Florida Family Law Case Summaries
April 17 - May 21, 2005
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Dependent children
S.E. v. Dep't of Children and Families, No. 5D04-1910 (Fla.App. 04/29/2005)
S.E., the mother of K.E. ("child"), appeals an order placing long term custody of the child with the father. We affirm.
State of Florida Dep't of Children and Family Services v. A.D., No. 1D04-1632 (Fla.App. 05/06/2005)
The Department of Children and Family Services appeals from the denial of its Petition for Termination of Parental Rights as to A.D., the mother of the minor children, D.D., A.W. and S.W. We reverse and remand for entry of an order terminating the mother's parental rights.
A.B. v. Florida Dep't of Children & Family Services, No. 3D04-467 (Fla.App. 05/04/2005)
The mother, A.B., appeals an order of adjudication of dependency. We affirm.
J.L. v. Dep't of Children & Families, No. 4D04-3479 (Fla.App. 04/20/2005)
J.L. (Father) appeals an order declaring his five-year-old son dependent. He claims that evidence of bruising was insufficient to establish the child had suffered harm and that dependency was not established by a preponderance of the evidence. We affirm.
L.C. v. Dep't of Children and Families, No. 5D04-2486 (Fla.App. 05/20/2005)
As there was clear and convincing evidence to support the termination of parental rights of the appellant, and as it appears that termination of the appellant's parental rights is in the best interest of the children, we affirm.
P.H v. Dep't of Children and Families, No. 5D04-2224 (Fla.App. 04/29/2005)
P.H., the father of A.H., appeals from the order of the trial court which found A.H. was dependent as to the father but withheld adjudication of dependency. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A).
Alimony
Levy v. Levy, No. 2D03-2903 (Fla.App. 04/29/2005)
Mary Janette Zimmerman, formerly known as Mary Janette Levy (the Wife), seeks review of the financial provisions of the final judgment that dissolved her short-term marriage to Leslie V. Levy (the Husband). The Wife also challenges the trial court's order that denied her timely motion for an award of attorney's fees and costs payable by the Husband. There is no cross-appeal. We reverse the final judgment in part and remand for further proceedings on the question of permanent periodic alimony in favor of the Wife and for the adjustment of the scheme of equitable distribution. We also reverse the order on fees and costs and remand for the entry of an award of attorney's fees and costs in favor of the Wife consistent with the Wife's need and the Husband's ability to pay. In addition, we hold that the trial court was not authorized to enter a substantive amendment to the final judgment more than ten days after the entry of the final judgment and after its denial of the Wife's motion for rehearing, and we vacate the amendment. We affirm the final judgment in all other respects.
Williams v. Williams, No. 3D05-5 (Fla.App. 05/11/2005)
The former wife, Carol Williams, appeals a final judgment of dissolution of marriage claiming that the trial court: (1) abused its discretion by denying her request for permanent periodic alimony and instead awarding bridge-the-gap alimony; (2) erred by failing to identify the mortgages on the marital home as marital liabilities and by failing to apportion these marital liabilities; and (3) erred by incorrectly calculating the former husband's child support payments. Further, she argues that upon remand, this court should order that the trial judge be disqualified based upon comments he made during the dissolution hearing. We agree in part.
Hillier v. Iglesias, No. 4D03-4204 (Fla.App. 05/04/2005)
A former husband sought a modification in alimony, which he had been paying for 20 years. Although his former wife had long since become an attorney and was now earning approximately $150,000 per annum without his alimony, the trial court denied his request and increased the amount. We reverse.
Dambro v. Dambro, No. 4D04-3017 (Fla.App. 04/27/2005)
Susan D. Dambro (former wife) and David Dambro (former husband) were married for just under 14 years and five months. This appeal involves a procedure employed during a modification proceeding where the former wife sought to modify the parties' alimony provision. This court finds error with the procedure used. Therefore, this opinion addresses only the procedure and not the substance of the parties' dispute over alimony. The issue in this appeal is whether a successor judge, presiding over a request for modification of alimony, is authorized to request a predecessor judge to enter an order clarifying what he intended when he entered an alimony provision previously applicable to the parties.
Yauch v. Yauch, No. 2D03-2740 (Fla.App. 04/22/2005)
James Yauch, the Husband, challenges the order dissolving his marriage to Pamela Yauch, the Wife. Specifically, he challenges the portion of the trial court's order directing him to pay periodic alimony, the court's valuation of the marital home, and the court's valuation of the Wife's van.
Child support
Woolf v. Woolf, No. 4D04-3403 (Fla.App. 04/20/2005)
Marc Woolf appeals a final order which found him in contempt, denied his petition for modification of alimony and child support, and charged him with a portion of his former wife's attorney's fees. We conclude that the trial court entered the contempt order without sufficient notice to appellant, and that the court abused its discretion in denying the modification motions and awarding attorney's fees in light of the parties' current financial situations.
Nicoletti v. Nicoletti, No. 2D02-5386 (Fla.App. 04/29/2005)
Scott Nicoletti and Nancy Nicoletti were divorced in 1990. In 2002, Mrs. Nicoletti filed a motion for contempt claiming that her former husband had failed to make payments toward their oldest daughter's college expenses, as required by the parties' marital settlement agreement. She also sought past due child support. In these consolidated cases, Mr. Nicoletti appeals the circuit court's two separate rulings on this motion. We reverse the order regarding college expenses and remand for further proceedings, but we affirm the order establishing child support arrearages.
Khan v. Dep't of Revenue, No. 4D03-2607 (Fla.App. 05/11/2005)
In the underlying domestic relations case, a mother filed a motion for unspecified sanctions against the father for failing to comply with an outstanding order compelling discovery. At the end of a hearing on that motion, at which the father was not present or represented, the trial court entered what is in effect a default final judgment awarding child support and arrearages to the mother. Appealing from a subsequent order denying his motion for relief from the judgment, the father argues that he had no notice that evidence on the merits of child support would be taken at the hearing on the mother's motion for sanctions in regard to discovery violations, and that in any case child support is not an appropriate sanction for failing to provide discovery. Although the Department of Revenue (DOR) appeared in the trial court on behalf of the former wife, it has not filed an answer brief. We reverse.
Larsen v. Larsen, No. 4D04-773 (Fla.App. 05/04/2005)
Appellant challenges an order authorizing the suspension of his driver's license for nonpayment of child support with a purge provision of $2,500. He claims that he does not have the present ability to pay the purge amount. Because the suspension of a driver's license constitutes a civil sanction, the court must provide the contemnor with the opportunity to purge the sanction, and it must determine that the contemnor has the present ability to pay the purge amount. . . . Not only did the trial court fail to make such a finding, nothing in the record would support a finding that appellant has the ability to pay that amount. We therefore reverse.
Rivera v. Dep't of Revenue, No. 2D04-3550 (Fla.App. 04/22/2005)
Luis Rivera appeals from an order setting aside a supplemental judgment modifying his child support. The circuit court set aside the judgment, which was entered after the Department of Revenue defaulted, upon its finding that the Department proved excusable neglect and a meritorious defense on behalf of its client, Mr. Rivera's former wife. To reverse a case such as this, an appellate court must determine that there has been a gross abuse of discretion. . . . Because the record is devoid of evidence proving either excusable neglect or a meritorious defense, we hold that the circuit court grossly abused its discretion and reverse.
Child custody; Visitation
Plichta v. Plichta, No. 2D03-3050 (Fla.App. 04/29/2005)
In this appeal of a final judgment of dissolution of marriage, Stephen D. Plichta, Jr., M.D., the Husband, asserts as error: (1) discrepancies between the final judgment and the rulings made by the trial judge in his e-mail to the parties' counsel, (2) the primary custody award to the Wife, (3) certain equitable distribution awards, and (4) the requirement that the Husband maintain his life insurance to secure the awards of child support and alimony. We affirm in part, reverse in part, and remand for further proceedings.
Benson v. Evans, No. 4D05-982 (Fla.App. 04/18/2005)
We grant the petition for writ of prohibition. Under the provisions of section 61.514, Florida Statutes (2004), the circuit court was without jurisdiction to take this case. The Uniform Child Custody Jurisdiction Act "applies to paternity actions when custody is an issue." . . . The child has resided in Texas for over three years with petitioner, a "person acting as a parent" within the meaning of section 61.503(13), Florida Statutes (2004), so there is no jurisdiction under section 61.514(1)(a). Based on the child's residence, Texas has jurisdiction. No order in the record reflects that a Texas court "ha[s] declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under s. 61.520 or s. 61.521"; also, the record does not reflect that the mother has "a significant connection with this state other than mere physical presence" and, given the child's long term residence in Texas, there appears to be no evidence available in Broward County "concerning the child's care, protection, training, and personal relationships." § 61.514(1)(b), (c). There have been no prior Florida orders or judgments involving custody of the minor child. Since the child left to go to Texas in 2001, the mother has lived in New York and California; the child has lived with the father in Texas and has not maintained any significant contacts with Florida.
Cartwright v. Cartwright, No. 2D04-726 (Fla.App. 04/20/2005)
The Wife raises several issues in her appeal from a final judgment of dissolution of marriage, and the Husband raises one issue on cross-appeal. We reverse the final judgment's visitation schedule as well as the portion of the final judgment requiring the parties to pay private school tuition for their minor children. We affirm all other aspects of the final judgment without discussion.
Loud v. Medina, No. 4D03-4720 (Fla.App. 04/20/2005)
We affirm the trial court's order dismissing the mother's emergency motion for contempt and other relief in which she alleged that the father failed to return the children from Panama, where he lives. The court concluded that it did not have jurisdiction under the Uniform Child Custody Jurisdiction Act because the parties were divorced in Panama, which issued a final judgment of divorce including provisions regarding custody of the children; the Panamanian court entered an order on modification, in which proceedings the mother participated; and the father continued to reside in Panama.
Haliburton v. Byrd, No. 4D04-650 (Fla.App. 04/27/2005)
Appellant challenges the denial of his motion for relief from a final judgment of paternity in which appellee was awarded custody of the minor child. Despite this denial, the court later entered an order in which it indicated that it would rehear the matter, giving appellant permission to reset the hearing. Although appellee says that the motion for relief was insufficient for failing to show due diligence to move to set aside the final judgment, the court might have considered the fact that appellant alleged he had actual custody of the child both before and after the final judgment was rendered as some reason for his failure to act, warranting rehearing of the matter. We reverse the order of denial and remand to the trial court to conduct a new hearing on the motion in accordance with its subsequent order. This renders moot the appeal of the second order.
Allocation of Property
Brill v. Brill, No. 4D03-882 (Fla.App. 04/27/2005)
Mary Brill appeals three postjudgment orders enforcing the provision of a final judgment that directed the marital home be sold when the youngest child reached majority. She contends the trial court entered the first two orders without notice and without full review and entered the third order, which is an order of contempt based upon the previous orders, without considering her objection. We affirm all three orders.
Schwartz v. Greico, No. 2D04-2121 (Fla.App. 04/29/2005)
Robert P. Schwartz (the Former Husband) and Linda Greico, f/k/a Linda Schwartz (the Former Wife), filed cross-motions in the trial court for a judgment on the pleadings determining the Former Wife's rights under a Stipulation and Property Settlement Agreement (the Settlement Agreement) to the proceeds of the sale of real property. The trial court entered judgment in favor of the Former Wife, and the Former Husband appeals. Because the provisions of the Settlement Agreement are unambiguous and the trial court correctly ruled that the Former Wife was entitled to a judgment as a matter of law, we affirm.
Pomeranz v. Pomeranz, No. 4D03-3127 (Fla.App. 04/20/2005)
The Former Husband appeals a final judgment of dissolution of marriage. The trial court refused to incorporate into the final judgment a property settlement agreement signed by both parties because there was not "adequate financial disclosure" to the former wife. We affirm, without comment, on all grounds raised by the Former Husband except one.
Proceedings
Smith v. Smith, No. 1D03-5448 (Fla.App. 05/06/2005)
Sara Smith appeals an order striking her motion for attorney's fees incurred in a dissolution of marriage proceeding against appellee by reason of appellant's failure to file her motion within 30 days after entry of the final judgment, as required by Florida Rule of Civil Procedure 1.525. Although the trial court recognized that the instant case was distinguishable from the line of cases holding that a provision in a final judgment reserving jurisdiction to determine entitlement to attorney's fees does not act as an automatic extension of time under Florida Rule of Civil Procedure 1.090(b) to file a motion for fees, it nonetheless granted the motion to strike due to appellant's noncompliance with the 30-day provision in rule 1.525. Because rule 1.525 is inapplicable in family law proceedings, see Amendments to the Florida Family Law Rules of Procedure (Rule 12.525), 30 Fla. L. Weekly S133 (Fla. Mar. 3, 2005), we vacate the order granting the motion to strike and remand the case for further proceedings.
Contempt
Mendana v. Mendana, No. 3D05-81 (Fla.App. 05/04/2005)
The former husband, Jose Mendana, appeals from an order finding him in indirect criminal and indirect civil contempt. We affirm, but reverse the sentence imposed for indirect criminal contempt.
Harris v. Millett-Harris, No. 3D04-342 (Fla.App. 04/27/2005)
Jeffrey B. Harris appeals from an order ratifying and adopting the Report and Recommendation of a General Master which recommended that Harris be held in contempt for failure to pay child support and incarcerated for 120 days upon failure to pay a $20,000 purge within 30 days. Harris claims that there is no evidence that he can pay the purge amount and thus the contempt order must be reversed. We disagree.
Attorney's fees
Nicoletti v. Nicoletti, No. 2D04-2356 (Fla.App. 05/06/2005)
Nancy Nicoletti challenges the circuit court's order denying as untimely her motion for attorney's fees incurred in postjudgment litigation with her former husband. We affirm.
Domestic Violence
Young v. Smith, No. 2D03-4596 (Fla.App. 05/11/2005)
Leon Young appeals a final judgment of injunction for protection against domestic violence entered against him pursuant to section 741.30, Florida Statutes (2003). Although the petition filed by Shelitha Kay Smith in this case contained allegations that permitted the trial court to enter an ex parte temporary injunction, Ms. Smith failed to prove those allegations at the evidentiary hearing. Thus, the trial court erred when it entered the final judgment.
Pope v. Pope, No. 1D04-4763 (Fla.App. 05/05/2005)
William Pope, III, the husband, appeals a final judgment of injunction for protection against domestic violence. This judgment extended a temporary injunction for protection for six more months without giving the husband an opportunity to present his case in response to Kristen Pope, his wife, who petitioned for the injunction and was afforded a full opportunity to testify and to present witnesses. We reverse and remand with directions to the trial court to conduct a prompt, full evidentiary hearing in accordance with section 741.30, Florida Statutes (2004). See Wooten v. Jackson, 812 So. 2d 609 (Fla. 1st DCA 2002); Miller v. Miller, 691 So. 2d 528 (Fla. 4th DCA 1997).
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