Jonathan Mann of Law Offices of Robin Bresky Obtains Reversal in Fifth District Court of Appeal of Final Judgment Modifying Timesharing Entered After Judge Disqualified Himself

Parnell v. Parnell, 5D12-785

Jonathan Mann of the Law Offices of Robin Bresky recently obtained reversal, in the Fifth District Court of Appeal, of a final judgment of modification of timesharing of a minor child. The parties’ son was two years old in 2008 at the time of the parties’ divorce. Two years after the divorce, the father sought to modify the timesharing schedule regarding the son. The trial court held a hearing on the father’s petition and at the end of the hearing made an oral ruling granting the modification.

However, the trial judge later disqualified himself from the case, and all cases involving the mother’s trial attorneys, shortly after the hearing due to a motion by the mother’s trial attorneys alleging fears they would not receive fair treatment. The parties then disagreed over the details of the final written judgment granting modification. The mother objected to the father’s proposed final judgment. The trial court rendered a written final judgment two months later granting the father’s petition for modification, despite the judge having disqualified himself.

On appeal to the Fifth DCA, Mann argued on behalf of the mother that the trial court’s final judgment was void because the trial judge rendered the written final judgment after disqualifying himself. Mann acknowledged the existence of the “ministerial act” exception that allows a disqualified trial judge to reduce a prior oral ruling to writing. However, the exception does not apply where the judge exercises any further discretion prior to rendering the written order. Mann argued that the exception was inapplicable in this case because the trial court had used further discretion regarding the parties’ disagreement over the proposed final judgment before rendering the written final judgment.

The Fifth DCA agreed that the ministerial act exception to the disqualification rule did not apply in this case. The Fifth DCA issued a written per curiam opinion reversing the final judgment of modification. This beneficial result in the appellate court undid the final judgment that was detrimental to our client.

Law Offices of Robin Bresky Obtains Reversal of Temporary Attorney’s Fees Award in Modification of Alimony Proceedings

Giorlando v. Giorlando, 4D12-1220

The Law Offices of Robin Bresky recently won reversal of a trial court’s award of temporary attorney’s fees and costs in a petition for modification of alimony. The parties’ marriage was previously dissolved and a marital settlement agreement (“MSA”) was incorporated in the Final Judgment of Dissolution. The MSA imputed $40,000 of yearly income to the former wife for purposes of determining alimony and child support.

The former wife filed a petition for modification of alimony and child support six years after the dissolution of marriage, alleging that substantial changes had occurred in both parties’ financial situations that warranted an increase in the alimony and child support she received. The trial court held a hearing at which both parties testified. The trial court later awarded the former wife $79,333.71 in total professional fees and costs without imputing the $40,000 in yearly income to the former wife pursuant to the MSA.

On appeal, we argued that the trial court should have imputed $40,000 in yearly income to the former wife as provided in the Final Judgment of Dissolution and MSA. The Fourth DCA agreed, and held that the $40,000 must be taken into account in the trial court’s determination of whether to award temporary fees. The Fourth DCA noted that the former husband had testified on the record to the decline in his construction business due to the economy, and that there had been no explanation for why the former wife’s need had increased. The Fourth DCA stated that the former wife should have the burden of explaining why the imputed income should not be considered.

The Law Offices of Robin Bresky recently won a motion for rehearing of an order of contempt that held our client in contempt for failure to pay an award of temporary attorney’s fees. We are in the process of appealing the underlying order requiring our client to pay fees to opposing counsel. The parties were divorced in 2005 and the final judgment of dissolution incorporated a marital settlement agreement that detailed the former husband’s alimony obligation. In 2011, the former wife filed a petition for modification of alimony seeking an increase in her alimony based on her allegations that the parties’ financial circumstances had changed substantially. As part of her petition, the former wife requested an award of temporary attorney’s fees. The trial court conducted a hearing and awarded the former wife $79,333 in attorney’s fees for the modification litigation.

Our client, the former husband, was unable to pay the temporary fee award due to a downturn in his business attributable to poor economic conditions. The former wife later filed a motion for contempt against our client based on his failure to pay. The trial court conducted a contempt hearing and then granted the former wife’s motion to hold our client in contempt.

Our firm filed a motion for rehearing of the order granting the former wife’s motion for contempt. We stressed that civil contempt requires a court finding of both a party’s willful non-compliance and that a party has the present ability to comply with the court’s order. We argued that the trial court had failed to adequately identify the means by which our client could satisfy the purge amount, and also that the order of contempt was improperly based in part upon a prospective ability to pay because it assumed our client would be able to make future regular payments to the former wife’s attorney. We argued that this framework ran contrary to the legal principle that contempt must be based upon a present ability to pay. We also argued that the trial court had failed to make findings that our client had equity in certain assets that the trial court had identified.

The trial court held a hearing and agreed with our position. The trial court rendered an order granting the motion for rehearing of the order granting the former wife’s motion for contempt. This positive outcome undid the order of contempt and prevented our client from being put in jail for not paying an attorney’s fee award that he could not afford to pay.

Law Offices of Robin Bresky Defeats Motion for Relinquishment of Jurisdiction

In an appeal by a Former Husband who took his Former Wife’s jewelry and artwork, the Former Husband moved the Fourth District Court of Appeal to relinquish jurisdiction to the trial court. He argued that the trial judge should have an opportunity to vacate the final judgment because it was allegedly entered without sufficient notice to the Former Husband.

The courts have said that anyone moving for relinquishment of jurisdiction must show some very good cause for the request, or it should be denied. “Where a party seeks relinquishment of jurisdiction . . ., the burden is on the moving party to show entitlement to relief.” Lurie v. Auto-Owners Ins. Co., 605 So. 2d 1023, 1025 (Fla. 1st DCA 1992). “The presumption is . . . that judicial economy would be best served by leaving jurisdiction in the appellate court until issuance of mandate. A party wishing to overcome that presumption and obtain a relinquishment of jurisdiction must show entitlement to that relief. . . .” Id.

The Law Offices of Robin Bresky filed a response for the Former Wife, demonstrating that the Former Husband had failed to show any entitlement to having the case relinquished to the trial court. The Fourth District denied the Former Husband’s motion to relinquish jurisdiction. The appeal will proceed and the appellate court will decide the issues on the merits.

The Law Offices of Robin Bresky takes pride in depth of research to support the positions that we argue for our clients. We welcome referrals for appeals of all kinds in state and federal courts and often provide litigation support for dispositive motions or responses in the trial court.

Cook v. Cook, 4D11-2561

The parties were married for nineteen years and had four children. They filed for dissolution of marriage, and their marriage was later dissolved by a final judgment that incorporated a marital settlement agreement (“MSA”). The MSA set a specific child support obligation for the former husband. The MSA also set a $1 per month alimony amount. The MSA provided that the former wife did not waive alimony and that the alimony amount “may be modified upon any modification in custody of the minor children, such that the alimony obligation would be increased.”

The former husband later petitioned for modification of his child support payment once only one of the parties’ children was still a minor. The former wife counter-petitioned for an increase in alimony due to an alleged substantial change in circumstances. The trial court reduced former husband’s child support payment and granted summary judgment against former wife on her counter-petition for an increase in alimony. The trial court found that the MSA only allowed a modification of alimony in the event that custody was modified.

On appeal, the Fourth District Court of Appeal (“Fourth DCA”) examined whether the trial court was correct in construing the MSA such that modification of custody was a condition precedent that was required before alimony could be modified. The Court noted that the law does not favor conditions precedent and requires they be unambiguous, and that the MSA’s language specifically allowed for the modification of alimony if custody was modified but did not restrict modification of alimony to those circumstances. The Court held that modification of custody was not a condition precedent. Additionally, the former wife had not waived modification of alimony. The Court reversed and remanded for further proceedings.

Cunha v. Cunha, 4D11-1892

The parties’ marriage was dissolved by a final judgment that incorporated a marital settlement agreement (“MSA”). The MSA gave the former husband the responsibility for paying a certain specific debt to a creditor, although the MSA did not specify the amount of that debt. The former wife filed a motion for contempt when the former husband failed to pay the debt. As a result, the trial court ordered the former husband to pay the debt, and named a specified amount of $5,722.

The former husband later fully settled the debt with the creditor by paying the creditor $2,400, an amount that was less than the total amount of the debt, and less than the $5,722 the trial court had ordered the former husband to pay. The former husband moved for relief from the $5,722 judgment under Florida Rule of Civil Procedure 1.540(b)(5) on the grounds that the specifically identified debt on which the judgment was based had been satisfied. The former wife opposed the motion and argued that the former husband had not paid the amount ordered by the court, and that paying an amount less than what was owed negatively affected her credit and tax liability. The trial court denied the motion.

On appeal, the Fourth District Court of Appeal (“DCA”) concluded that the former husband had satisfied the MSA’s requirement that he pay the specific debt. The Fourth DCA noted that the MSA only specified the debt and did not list any specific amount. The court also stressed that the MSA did not prohibit former husband from negotiating the amount of the debt. The court reversed and remanded for the trial court to vacate the judgment.

Goldstein v. Goldstein
Case No. 4D10-3081

We represented a former wife in an appeal from an amended final judgment of dissolution of marriage. The trial court had denied our client her attorney’s fees and costs without making any findings as to our client’s need and the former husband’s ability to pay. Additionally, in the equitable distribution the trial court had attributed to our client a marital account that she had used to pay living expenses after the former husband had moved out and stopped paying any of the bills associated with the marital home.

On appeal, we argued that the trial court abused its discretion in denying our client her fees and costs without making the appropriate findings as to need and ability to pay. We also argued that the trial court had erred in attributing the depleted account to our client in equitable distribution where the trial court had not made the required finding that depletion of the account was due to any misconduct by our client.

The Fourth District Court of Appeal agreed that the trial court had erred in failing to make the findings regarding need and ability to pay attorney’s fees and costs. The Fourth DCA further held that the trial court erred in denying our client her fees and costs, based on the significant income disparity between the parties as shown by the record. The Fourth DCA also held that the depleted account could not be attributed to our client in equitable distribution without a finding of misconduct, and that our client’s actions in spending the funds on reasonable living expenses did not qualify as such misconduct. See Tillman v. Altunay, 44 So.3d 1201, 1203 (Fla. 4th DCA 2010); Sheehan v. Sheehan, 943 So. 2d 818, 822 (Fla. 4th DCA 2006). The Fourth DCA reversed the amended final judgment and remanded it to the trial court for an award of fees to our client and a credit to her of her marital portion of the depleted account to be included in her equalizing payment.

** [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. ] **

Bell v. Bell,
Case No. 4D10-5122

This was a divorce case with several contested issues regarding the parties’ assets. Our client, the former wife, appealed the final judgment of dissolution of marriage. The former husband cross-appealed. Our client’s main issues were (1) the trial court’s failure to award her half of the husband’s accounts receivable from loans he made to his businesses; and (2) the trial court’s failure to make factual findings before denying her request for bridge-the-gap alimony.

The Fourth District Court of Appeal (“Fourth DCA”) agreed with our position that the trial court had erred in failing to award our client half of the husband’s accounts receivable. The Fourth DCA reversed and remanded. On remand to the trial court, the former husband took the position that the issue required an evidentiary hearing to determine the new equitable distribution of the asset. We opposed the need for an evidentiary hearing, arguing that the Fourth DCA had clearly stated in its written opinion that the value of the omitted account receivable was $660,611 based on undisputed testimony from the trial. The trial court agreed and entered an order denying the former husband’s demand for an evidentiary hearing.

The former husband next argued that the former wife should receive the omitted equitable distribution amount as an in-kind distribution (i.e. in assets of the business such as the notes themselves). We opposed the former husband’s position and argued that the former wife should receive the omitted amount as a cash distribution. The trial court received proposed Final Judgments from the parties reflecting the parties’ positions. On June 7, 2012 the trial court rendered an Amended Final Judgment that conformed to the appellate court’s mandate and also ordered that the omitted amount would be payable to former wife in cash in an amended equalization payment.

This outcome preserved the positive result we achieved in the appellate court for our client, saved her the additional attorney’s fees associated with a lengthy evidentiary hearing following remand, and obtained an order that the former husband must pay her the omitted equitable distribution amount in cash.

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. On appeal, our firm argued that it was legal error for the trial court to have used our client’s refusal of a 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 the 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 reversed the award of fees to the former husband. This favorable result would allow 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. However, the former husband then filed a motion for rehearing, rehearing en banc, and certification of conflict. The former husband asked the Fourth DCA to revisit its decision on the grounds that the decision conflicted with decisions from the Florida Supreme Court and other Florida district courts of appeal.

We opposed the former husband’s motions. We argued that the Fourth DCA’s decision in this case did not conflict with any of its previous decisions. Furthermore, while we acknowledged some general conflict between the Fourth DCA’s decision in this case and decisions from other district courts of appeal, we argued that the conflict would not change the result in this case due to the Fourth DCA’s holding that our client’s conduct did not amount to bad faith or vexatious litigation. On June 5, 2012, the Fourth DCA denied the former husband’s motions, and we successfully preserved our client’s appellate win in the Fourth DCA.

Bell v. Bell, 502007DR002692XXXXSB
Case No. 4D10-5122

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

The Fourth District Court of Appeal (“Fourth DCA”) agreed with our position that the trial court had erred in failing to award our client half of the husband’s accounts receivable. The Fourth DCA reversed and remanded. On remand to the trial court, the former husband took the position that the issue required an evidentiary hearing to determine the new equitable distribution of the asset. We opposed the need for an evidentiary hearing, arguing that no evidentiary hearing was necessary because the Fourth DCA clearly stated in its written opinion that the value of the omitted account receivable was $660,611 based on undisputed testimony from the trial.

The trial court agreed and entered an order denying the former husband’s demand for an evidentiary hearing. The trial court received proposed Final Judgments from the parties. This preserved the positive result we achieved in the appellate court for our client and saved her the additional attorney’s fees associated with a lengthy evidentiary hearing in the trial court after remand.