STATUTES & CASES

FLORIDA STATUTES

CASES

Florida Case Law:

Important NOTE: The rulings and decisions of the various Florida appellate courts and the Florida Supreme Court provide guidance to the trial courts of Florida on the various issues that the trial courts must deal with. The cases we have cited below are related to the various issues involved in family law and are provided here for general information purposes. These summaries are not intended to be legal advice. The facts of each case are vitally important in determining whether or not a prior case is precedent for your situation. Because of the extensive nature of the fact patterns involved in these cases, we cannot reprint them here. So, please be aware, that the following case rulings may or may not apply to your situation and you should consult with an Attorney, licensed to practice law in the state of Florida, to determine how they apply to you. Also, please be aware that these cases are based in Florida and only apply in Florida.

Agreements:

Colley v. Colley (1st DCA – 2012) A settlement agreement need not resolve all issues to be valid.

Alimony:

Canakaris v. Canakaris (Florida Supreme Court – 1980) Alimony is used to provide for the needs of the former spouse based upon the standard of living established by the parties during their marriage. The two factors to be considered by the Court are the need of one spouse and then the ability of the other spouse to contribute toward the needs of the first.

Melton v. Melton (2nd District Court of Appeals – 2012) The Husband’s expenses for charitable contributions were not deductible from his income in calculating his ability to pay permanent periodic alimony.

Vitro v. Vitro (4th District Court of Appeals – 2012) Retroactive alimony can be awarded back to the date of the filing of the Petition for Dissolution.

Simon v. Simon (4th DCA – 2012) Trial Court reversed for limiting Wife’s claim for temporary relief based on terms of prenuptial agreement. Until a marriage is dissolved, support cannot be waived by agreement.

Stoothoff v. Hobdy (5th DCA- 2012) Trial Court erred in concluding parties reached a binding verbal agreement on timesharing when there was no written executed parenting plan.

Khan v. Khan (4th DCA 2012) It is against public policy to waive temporary alimony and fees.

Elbaum v. Elbaum (4th DCA 2012) Trial Court reversed for requiring husband to secure alimony with life insurance without findings as to availability, cost, obligor’s ability to pay and special circumstances that warrant security.

Featherston v. Featherston (2nd DCA- 2012) Trial Court abused discretion by not awarding retroactive alimony because Wife had a non-marital asset available to her.

Quinones v. Quinones (3rd DCA- 2012) Award of permanent alimony. Trial Court cannot consider Husband’s contributions to adult son in determining alimony.

Appeals:

Hentz v. Denys (1st DCA 2012) “Law of the case doctrine” does not apply to trial orders. Only applies to issues decided on appeal.

Attorney’s Fees:

Hallac v. Hallac (4th DCA – 2012) Trial Court affirmed for awarding reduced fees to Wife for her failure to accept reasonable settlement. The Trial Court can use results obtained, vexatious litigation, harassment, or other bad faith type conduct to deny attorney’s fees to a spouse otherwise entitled to fees based upon need and ability to pay.

Custody of Children: (Also see Parenting Plans and Time Sharing)

Crittenden v. Davis (4th DCA – 2012) The trial court cannot modify parental responsibility unless there has been a substantial change in circumstances involving the children.

Wade v. Hirschman (Florida Supreme Court – 2005) A trial court decides the initial custody of children under Florida statute §61.13 in accordance with the best interest of the child. A final decree granting custody can only be modified when there has been a substantial change of circumstances. There must be a substantial change in circumstances in order for the trial court to change “custody.” A substantial change occurs with the situation has changed in a substantial and material way that was not reasonable contemplated at the time the Court issued its original ruling.

Mayo v. Mayo (2nd DCA-2012) Trial Court reversed for modifying time sharing schedule without addressing best interests of the children.

Domestic Violence:

Lee v. Lee (2nd DCA- 2012) Order extending domestic violence reversed as it did not meet burden for extension. When moving for extension of a pre-existing injunction, must establish that either additional domestic violence occurred or petitioner has a reasonable fear of being in imminent danger of domestic violence.

Equitable Distribution:

Blossman v. Blossman (1st District Court of Appeal – 2012) The trial court averaged two experts opinions as to the value of stock owned by the parties. The appellate court reversed the trial court because “averaging” is a prohibited method of valuation in Florida.

Holtz v. Holtz (4th District Court of Appeal – 2012) The trial court cannot use its powers of contempt to enforce equitable distribution.

Hedman v. Hedman (3rd District Court of Appeal – 2012) A marital home titled to both parties as “tenants by the entirety” is a marital asset, even where home was paid for by husband’s relative. Goldstein v. Goldstein (4th District Court of Appeal – 2012) A trial court cannot distribute an account that was depleted during the dissolution process unless the account was depleted as a result of an intentional wasting of the funds for non-marital purposes.

Liberatore v. Liberatore (5th DCA- 2012) Trial Court reversed for charging Wife with depleted account used to pay her attorneys’ fees without a finding of misconduct.

Bikowitz v. Bikowitz (2nd DCA 2012) Trial Court’s finding that payment was made by an employer during the pendency of divorce and was non marital reversed in part. Court must look at primary purpose of the grant (past services v. future). Here there was no evidence presented and payment was undifferentiated and therefore properly deemed marital. However, the trial court was reversed for including entire amount as marital. Court should have applied a coverture fraction to the payment and set aside non-marital portion meant for future consulting.

Tradler v. Tradler (2nd DCA – 2012) Trial court reversed for failing to take into consideration tax consequences on husband’s retirement required to equalize marital estate. Trial court should have not charged accounts depleted during pendency to husband without finding of misconduct. Checks deposited into marital account after date of filing did not comingle funds to make accounts marital.

Hedman v. Hedman (3rd DCA- 2012) Marital home jointly titled in both parties names by the entirety , paid for by husband’s father, properly categorized as marital property subject to equitable distribution.

Franks v. Franks ( 1st DCA- 2012) Trial Court affirmed for directing former husband to name former wife beneficiary of a military Survivor Benefit Plan to protect her award of former husband’s retired Navy pay. Trial Court has discretion to order a spouse to maintain an annuity for a former spouse under the Survivor Benefit Plan.

Judicial Discretion:

Canakaris v. Canakaris (Florida Supreme Court – 1980) The power of a Court to use its personal judgment. Discretion is abused when “no reasonable man” could reach the same conclusion as the Court.

Prenuptial Agreements:

Simon v. Simon (4th District Court of Appeals – 2012) A prenuptial agreement cannot waive “temporary relief” (spousal support and/or an award of temporary attorney’s fees and costs). Only “support” to be paid after the dissolution is final can be waived in a prenuptial agreement.

Parenting Plans and Time Sharing:

Mayo v. Mayo (2nd DCA – 2012) The trial court cannot modify a time sharing schedule without addressing best interest of the children.

Relocation:

Tucker v. Liebknecht (5th DCA- 2012) Trial Court reversed for enjoining wife from relocating 50 driving miles away. Standard of measurement is straight line, as the crow flies, NOT driving mileage.

Weaver v. Weaver (2nd DCA -2012) Support order requiring uncovered health expenses be equally divided by parties reversed and remanded to allocate expenses in accordance with parties respective shares of child support obligation.

Supportive Relationship:

Overton v. Overton (1st DCA- 2012) Trial Court affirmed for refusing to modify alimony when former wife was in a supportive relationship but relationship has no effect on former wife’s need for alimony.