Fisher v. Fisher
Case No. 4D10-383

The Fourth District Court of Appeal (“Fourth DCA”) addressed a direct appeal from a final judgment of dissolution of marriage. The trial court’s final judgment provided that the former wife and minor children would have exclusive use and possession of the marital home until the youngest child reached the age of eighteen or became emancipated. The former husband appealed, arguing that the trial court erred in including the provision for the former wife’s exclusive use and possession of the marital home where the trial court failed to provide for the termination of the former wife’s exclusive use and possession if she remarried. The Fourth DCA agreed with former husband. Citing its opinion in Arze v. Sadough-Arze, 789 So. 2d 1141 (Fla. 4th DCA 2001), the Fourth DCA reaffirmed that awards of exclusive use and possession of the marital home should specify a time duration and provide for termination of the award on the remarriage of the spouse in residence.

Block v. Tosun
Case No. 4D11-1594

The Fourth District Court of Appeal (“DCA”) reviewed a trial court order granting a motion to vacate an eighteen year old default judgment without an evidentiary hearing. The plaintiff trustees had obtained a default judgment against Tosun in 1992. Eighteen years later, with no record activity having occurred, the trustees served Tosun with a subpoena duces tecum in aid of execution. Tosun moved to vacate the default judgment, claiming he never received service of process. Tosun alleged in his motion that the court file that would contain the return of service had since been destroyed. Tosun also attached an affidavit in which he claimed no recollection of having received the complaint and summons, or the default judgment. However, the clerk’s progress docket contained an entry indicating that Tosun had in fact been served with process. The trial court granted Tosun’s motion to vacate following a non-evidentiary hearing.

On appeal, the Fourth DCA agreed with the trustees that the trial court had erred in concluding that their failure to provide a return of service required the court to set aside the final judgment as a matter of law. The trustees had met their burden by providing the clerk’s progress docket as well as the default judgment. The court stated that “[t]ogether these documents constitute evidence which affords a reasonable basis for the conclusion that it is more likely than not service of process on Tosun was properly perfected in 1992.” The Fourth DCA reversed and remanded for the trial court to conduct an evidentiary hearing on the issue.

Rice v. Rice
Case No. 4D10-2523

We represented a former wife whose trial counsel succeeded in getting her former husband’s petition for modification of alimony dismissed, as well as attorney’s fees as a sanction. The parties had divorced in 2005 and entered into a Marital Settlement Agreement whereby the former husband paid the former wife alimony. In 2009, the former husband filed a Petition for Downward Modification of Alimony. The former husband originally alleged three separate grounds as changed circumstances for his petition, but later withdrew two of them and proceeded only upon his contention that the former Wife’s receipt of social security payments constituted a sufficient change in circumstances. However, the former husband was aware that former wife’s overall financial condition had declined, even with the receipt of social security, due to a decrease in her income from her business and investments. The trial court agreed with our client’s trial counsel that the former husband failed to make a sufficient prima facie (initial) showing of a basis for modification.

The former husband appealed, arguing that he had made a prima facie case for modification, and that the trial court’s finding that the former husband’s claims were “frivolous and non-meritorious” was also in error. We responded that the trial court had not in fact granted an involuntary dismissal and that the result should be affirmed regardless. The Fourth District Court of Appeal issued a per curiam affirmance of the trial court decision. This ruling by the appellate court affirmed the trial court’s dismissal of the Petition for Downward Modification, thereby maintaining the beneficial result for our client.

Baudanza v. Baudanza
Case No. 4D10-4068

The parties divorced in 2006 and Former Husband was ordered to pay child support pursuant to the parties’ Marital Settlement Agreement. Former Wife later remarried, and the parties agreed to a modification whereby Former Husband would pay half of the original child support amount and Former Wife’s new husband would file for formal adoption of the parties’ son, but Former Husband would have access to his son for life. An adoption proceeding was started with a new case number. However, the final order of adoption stated that Former Husband’s parental rights to his son were terminated. Former Husband later claimed in the dissolution of marriage proceeding that he did not have to pay child support since Former Wife had precluded him from seeing his son and his parental rights had been terminated by the adoption order. The family court judge ruled that she lacked further jurisdiction of the matter because the modification and adoption had closed the case.

On appeal, the Fourth District Court of Appeal held that the family court judge still had jurisdiction despite the order of adoption. The court cited case law for the proposition that a judge in the probate, juvenile, civil or criminal division “has the authority and jurisdiction to hear cases involving child custody or dependency.” In Interest of Peterson, 364 So. 2d 98, 99 (Fla. 4th DCA 1978). Additionally, the court noted that the family court had retained jurisdiction in its order on the modification agreement, whereas the trial court in the adoption had not reserved jurisdiction. The court held the family court could “determine the validity and enforceability of the [modification] agreement in light of the adoption of the child.” The court reversed and remanded for further proceedings.

Davis v. M&M Aircraft Acquisitions, Inc.
Case No. 4D11-706

The Fourth District Court of Appeal (“DCA”) reviewed a trial court order denying a non-party’s motion to vacate a final judgment. Robert Davis owned 40% of Aerovision, LLC, and Daniel McCue owned 60%. McCue sold his interest in Aerovision to M&M Aircraft. Davis then sought a declaratory judgment in federal court that he was the only member authorized to manage Aerovision. M&M sued Aerovision in state court seeking a similar declaration of status for McCue. The trial court, unaware of Davis’ interest in Aerovision, granted a final judgment in which it found that McCue was Aerovision’s “sole managing member.” Davis filed a motion to vacate the final judgment on the grounds of fraud, pursuant to Florida Rule of Civil Procedure 1.540(b). The trial court denied Davis’ motion because it found that the final judgment did not directly affect his rights.

On appeal, the Fourth DCA held that the facts of the case showed that the final judgment directly affected Davis’ rights such that he had standing to bring a motion to vacate the final judgment under rule 1.540(b) if the judgment was obtained by fraud or collusion, despite his status as a non-party to the state court action. The court pointed out that the parties stipulated to Davis’ 40% ownership of Aerovision and authority to manage it, as well as that the final judgment had been fraudulently obtained. The court reversed and remanded, with the instruction that the trial court could consider additional evidence.