Preudhomme v. Bailey
Case No. 4D10-3262

Our firm challenged the trial court’s final judgment on behalf of a former wife claiming that the lower court erred in dividing the assets, calculating income of the husband, awarding an inadequate amount of alimony, calculating child support payable by the wife, and including overly restrictive parenting provisions. The case involved a highly contentious divorce of a sixteen year marriage involving three minor children. Although the former wife had a CPA license, she stayed at home with the minor children. The former husband traded and managed properties.

In the final judgment, the lower court commented that much of the evidence was conflicting and the facts were disputed. The court then divided the various assets and awarded sole parental responsibility with the father. In addition, the court significantly prohibited the former wife from petitioning for modification of the parenting plan unless she completed: (1) fifty-two weeks of individual psychological therapy; (2) another twenty-six weeks of joint psychological therapy with the children; (3) five additional sessions on child discipline; and (4) two eight-week sessions in parental effectiveness training.

On Appeal, the Fourth District Court of Appeal reversed and remanded for further proceedings. The Appellate Court determined that the lower court erred in calculating stock due to the wife based upon the lower court’s failure to make factual findings as to whether the initial stock was purchased or a gift. Furthermore, the lower court’s findings regarding numerous bonus shares of stock were not supported by competent substantial evidence.

The Court also found that the lower court erred by refusing to determine whether real property owned by the former husband in Jamaica was marital or non-marital property. Specifically, section 61.075(3)(a) and (b), Florida Statutes, requires the court to make clear identification of marital and non-marital assets. Therefore, the lower court could not refuse to address the property in Jamaica, as it did here.

Finally, the Court found that the trial court abused its discretion in parts of the parenting plan as there was no competent substantial evidence to support the specific type and length of therapy ordered by the court for the former wife. Furthermore, there was no evidence to support the specific time restrictions on the former wife’s ability to petition for modification of the parenting plan which severely impacted her ability to parent her children. Thus, the lower court could not arbitrarily determine that the therapy must last a specific time before the former wife could request to spend more time with her children.

Judkins v. Dep’t of Revenue and Jose Briceno
Case No. 4D10-4579

We represented a mother in her appeal from the Department of Revenue’s child support order. The mother had sought an order requiring the father of her child to pay child support. Specifically, the mother’s application for child support enforcement sought financial contribution from the father for the child’s uncovered medical expenses. At the hearing, the mother introduced evidence that she paid over $10,000 in expenses due to the child’s severe asthma. The Department of Revenue order only awarded the mother $2,800 for this expense. Additionally, the hearing officer’s orally pronounced ruling stated that the mother was entitled to $26,368.00 in retroactive child support, but the written order erroneously stated that the mother was only entitled to $23,368.00.

On appeal, we argued that the Department had erred in failing to properly consider the child’s uncovered medical expenses and include those expenses in the child support calculation or order Briceno to pay them in accordance with his percentage of child support. We also argued that the written order should be amended to conform to the hearing officer’s oral pronouncement that awarded the mother $26,368.00 instead of $23,368.00. The Fourth District Court of Appeal agreed. The court reversed and remanded the award regarding medical expenses pursuant to section 61.30(8) Florida Statutes (2010), to provide for future uncovered expenses. The court also remanded for the lower tribunal to conform the final order to its oral pronouncement.

**[Note: At the time of this posting, the Fourth DCA mandate has not issued. The decision will not be final until disposition of a timely filed motion for rehearing.] **

Hallac v. Hallac
Case No. 4D10-4450

We represented a former wife in an appeal from the trial court’s order on opposing motions for attorney’s fees following trial. Early in the dissolution of marriage case, our client had rejected the former husband’s settlement offer and made a counteroffer. The case proceeded to trial and our client obtained a result less favorable than the former husband’s last settlement offer. Following trial, the trial court used our client’s refusal of the settlement offer as a basis to both deny our client her attorney’s fees for work after the refusal of the offer, and award the former husband his attorney’s fees incurred for the time period after our client rejected the offer. The trial court made the award despite the fact our client had virtually no income and the former husband had an annual income over $500,000 combined with substantial premarital assets.

On appeal, our firm argued that it was legal error for the trial court to use our client’s refusal of the settlement offer and the fact that she later obtained a less favorable result at trial as a basis to punish her in the attorney’s fee award. The Fourth DCA agreed in part. The Fourth DCA held that the trial court was allowed to deny our client her fees for her failure to accept the settlement offer because under Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997), a trial court is allowed to consider settlement offers and the results obtained by a party in making an award of fees under section 61.16, Florida Statutes (2009). However, the Fourth DCA found that Former Husband had no “need” to support a statutory award of fees to him, and that our client’s conduct in refusing the settlement offer did not rise to the level of vexatious or bad faith conduct sufficient to support an award against her under the court’s inherent authority to prevent such conduct.

The Fourth DCA therefore reversed the award of fees to the Former Husband. This favorable result allows our client to obtain the fees she was awarded for work prior to her rejection of the settlement offer, free of the setoff resulting from the award to the Former Husband.
** [Note: At the time of this posting, the Fourth DCA mandate has not issued. The decision will not be final until disposition of any timely filed motion for rehearing. ] **

Canterbury Apartments, Inc. v. Sokol,
Case No. 10-21735 CACE (26); L.T. Case No. 09-7287 COCE (53)

We represented the tenants of a unit of a co-operative apartment building. Prior to our involvement in the case, the apartment building management filed suit against our clients alleging five separate violations of the lease, corporation by-laws, and rules and regulations. The apartment management sought to remove our clients from the apartment and terminate our clients’ certificate of ownership. The trial court granted final summary judgment in favor of our clients based on the court’s finding that the allegations, even accepted as true, did not constitute a persistent violation of the governing documents that would entitle the apartments to remove our clients and terminate their certificate of ownership. The apartment management appealed.

On appeal, we defended the trial court’s finding that the governing documents simply did not allow the apartments to remove our clients and terminate their certificate of ownership for the violations alleged. Specifically, we argued that the requirement in the governing documents that the violations be “persistent” barred the apartment management’s relief here where none of the five different alleged violations was repeated. The Seventeenth Judicial Circuit in and for Broward County, sitting in its appellate capacity, agreed. The court affirmed the final summary judgment for our client and granted our motion for appellate attorney’s fees.

Drdek v. Drdek,
Case No. 4D10-3082

We represented a former wife who originally filed a motion for contempt shortly after the parties divorced, due to the former husband’s non-payment of alimony despite his recent receipt of significant income from social security. The trial court adopted the magistrate’s recommendation to deny former wife’s motion because the parties’ marital settlement agreement (“MSA”) exempted retirement benefits. The former wife then filed another motion for contempt for non-payment of alimony that was heard by a different magistrate. The second magistrate rejected the proposition that she was bound by the law of the case doctrine to recommend denial, and found that a manifest injustice would result. The second magistrate found the first magistrate’s interpretation of the MSA clearly erroneous. However, the trial court sustained the former husband’s exceptions to the second magistrate’s recommendation, finding that the law of the case applied and a magistrate could not overrule the prior circuit court ruling on the grounds of manifest injustice.

On appeal, the Fourth DCA agreed with our position that the law of the case did not apply where the proceedings did not involve a prior appellate court. The trial court was therefore not bound by the law of the case to sustain the former husband’s objections to the second magistrate’s recommendation. The Fourth DCA held that the second magistrate was bound by the general principle that a successor judge may not correct errors of law on the same facts presented to the predecessor judge. However, the Fourth DCA remanded in part on the issue of past-due alimony pursuant to the former husband’s non-modifiable obligation in the MSA.

This result allowed our client to seek to obtain past due alimony from the former husband’s other assets.

** [Note: At the time of this posting, the Fourth DCA mandate has not issued. The decision will not be final until disposition of any timely filed motion for rehearing.] **

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.

Rahabi v. FIGA
Case No. 4D10-846*

The issue on appeal was whether our clients were entitled to an award of attorney’s fees because FIGA affirmatively denied our clients’ claim under the insurance policy prior to paying the appraisal award.

Our clients’ roof was damaged by Hurricane Wilma in 2005. Our clients sought coverage under the insurance policy to repair their roof. FIGA took over our clients’ insurance policy with Atlantic Preferred. In 2007, our clients filed a complaint and, initially, FIGA moved for dismissal. Later, FIGA filed an answer with affirmative defenses, and, after several months of discovery, FIGA decided to send the dispute for appraisal. An appraisal award was issued to our clients and FIGA paid the appraisal award. Our clients requested an award of attorney’s fees and costs from the trial court. The trial court denied the request reasoning that FIGA never affirmatively denied coverage of our clients’ claim. Our clients appealed arguing that FIGA affirmatively denied their claim by its actions.

The Fourth District Court of Appeal agreed. The court held that FIGA affirmatively denied our clients’ claim by asserting, in several of its affirmative defenses that our clients’ damages “were not caused by a covered loss.” The court disagreed with FIGA’s argument that its actions amounted to no more than a delay in payment of the claim. The court distinguished our clients’ decision from its recent decision in Ehrlich in which it held that FIGA did not affirmatively deny the party’s claim by filing its affirmative defenses because it was forced to file the pleading by a court order and sought an extension of time to complete its investigation. The court held that, in our clients’ case, FIGA neither sought an extension to complete its investigation nor had a court order compelling it to file a responsive pleading. The Fourth District Court of Appeal reversed and remanded with instructions that the trial court set an evidentiary hearing to determine our clients’ reasonable sum of fees and to determine whether our clients were entitled to a reimbursement of their costs.

* The Mandate has yet to be issued.

Shinitzky v. Shinitzky
Case No. 4D10-137

We represented a former husband whose marriage was dissolved by a final judgment in 2007. The final judgment ordered the former wife to pay our client half “of the value” of certain investment accounts held by the parties. The former wife appealed. The trial court denied the former wife’s motion for stay pending appeal and granted our client’s motion to enforce the final judgment to distribute the funds. The former wife obtained a temporary stay in the appellate court that was eventually extended until the appeal became final, but that did not require the former wife to post a bond. The Fourth District Court of Appeal (“Fourth DCA”) affirmed the final judgment in its totality prior to our involvement in the case. Our client again brought a motion to enforce. A successor judge granted our client’s motion but ruled that he was entitled to a division of the accounts in kind, rather than half of the value of the accounts as of the date previously specified in the final judgment. This interpretation of the final judgment by the trial court was significant because the accounts had significantly decreased in value.

On appeal, the Fourth DCA agreed with our argument that the trial court had misinterpreted the final judgment. The Fourth DCA noted that it was improper for the successor trial judge to have taken new evidence at the hearing, including expert testimony, that eventually led to the successor judge significantly altering the final judgment and enforcement order.

The Fourth DCA reversed and remanded for the effectuation of the final order, including (1) payment to our client of one half of the value of the investment accounts as of the date specified in the final judgment, and (2) payment of a $193,479.50 equalizing payment by the former wife to our client with interest from its original 2007 due date.

VOIS, Inc. v. Michael Spindel and Edward Spindel,
Case No. 10-15668-D

We represented a corporation that had gone through multiple changes of ownership since issuing promissory notes to two of its investors and former directors, the Spindels. The corporation sued the Spindels for corporate wrongdoing, and the Spindels countersued claiming they were never paid under the promissory notes relating to their investments. The Spindels removed the case to federal court. During the litigation, the corporation discovered that it possessed the original promissory notes, giving rise to the legal presumption that the debts had been satisfied. However, the trial court granted summary judgment in favor of the Spindels, despite evidence showing that the corporation properly mailed the original promissory notes to the Spindels, supporting the corporation’s position that its debt under the notes had been satisfied.

On appeal, we argued that the trial court erred in granting summary judgment in favor of the Spindels where evidence existed from which a finder of fact could conclude the corporation mailed the spindles the original promissory notes. Summary judgment is inappropriate where there exists conflicting evidence as to an issue of material fact. The U.S. Court of Appeals for the Eleventh Circuit agreed. The court reasoned that the trial court’s finding the evidence was undisputed was erroneous because the corporation had produced evidence indicating that it sent the Spindels the original notes. The Eleventh Circuit reversed and remanded to the trial court.

Bell v. Bell

This was a divorce case involving several issues regarding the parties’ marital and non-marital assets. Our client appealed and the opposing party cross appealed. Our client’s main issues were the trial court’s failure to (1) award her half of the husband’s accounts receivable from loans he made to his businesses; and (2) make factual findings before denying her request for bridge-the-gap alimony.

The Fourth District Court of Appeal agreed that the trial court erred in failing to award our client half of the husband’s accounts receivable. It reversed and remanded with instructions that the trial court make specific written findings regarding the assets. Likewise, Fourth District Court of Appeal agreed that the trial court reversibly erred in failing to make the appropriate findings regarding our client’s request for bridge-the-gap-alimony, and it also reversed on that point. Our client was awarded entitlement to attorney’s fees as the prevailing party. Shortly thereafter, the opposing party filed a motion for rehearing and/or clarification to which our client responded. In agreement with our response, the Fourth District Court of Appeal denied the opposing party’s request for rehearing and/or clarification.