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.

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.] **

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. ] **

Angelica Parris gave birth to a child while married to Joseph Parris. Angelica later filed for divorce, representing in her petition for dissolution that there were no minor children of the marriage. The trial court entered a final judgment of dissolution of marriage. Silveira later filed a paternity action pertaining to the child Angelica had given birth to while still married to Joseph Parris. The trial court dismissed the paternity action based upon the presumption of Joseph Parris’ paternity during the marriage. The trial court later discovered Angelica’s representation in the dissolution of marriage action that there were no children of her marriage to Joseph Parris. The trial court vacated its previous order dismissing the paternity action. The court held a contempt hearing and found Angelica in contempt for her false representations in both cases. The court ordered that Angelica could purge the contempt by arranging for a DNA test to determine the child’s paternity.

In a written opinion, the Fourth District Court of Appeal (“DCA”) held that the trial court erred in finding Angelica in civil contempt. The Fourth DCA stressed that civil contempt is a coercive sanction that is used to compel compliance with a court order. Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla. 1985). Although Angelica may have previously lied, she could not properly be held in civil contempt because she was under no court order to perform any act. The Fourth DCA reversed.

The office of the state attorney subpoenaed information from the City of Riviera Beach that included the names of confidential informants the City had used. The trial court ordered the City to comply with the subpoena. The City filed a petition for writ of certiorari in the court of appeal seeking to quash the order. The Fourth DCA held that no privilege for confidential informants protected the information the state attorney requested in the subpoena. Additionally, the Fourth DCA held that the state attorney’s investigative subpoena did not implicate the right to privacy under Article I, section 23 of the Florida Constitution. The Fourth DCA noted that both the City and the state attorney are required by statute to keep the information confidential. The Fourth DCA therefore determined that there was no departure from the essential requirements of law, denied the City’s petition, and held the state attorney was entitled to the names of the confidential informants under section 27.04, Florida Statutes (2010).

The trial court rendered an order terminating a mother’s parental rights to her minor child, S.A. S.A., whose father was serving a long sentence of incarceration, was residing with his half-siblings (the mother’s other children) and their father. The Department had sought to terminate both of S.A.’s parents’ rights to him in order to give S.A. permanency. However, the Department had not moved to terminate the mother’s rights to her children that were living with their father. The mother, S.L., appealed, arguing that the trial court’s finding that termination was the least restrictive means of protecting S.A. was not supported by competent substantial evidence. Specifically, the mother argued that termination was not the least restrictive means where the trial court did not also terminate her parental rights to her other children. In support, the mother relied upon In re G.R., 793 So. 2d 988 (Fla. 2d DCA 2001).

In a written opinion, the Fourth District Court of Appeal (“DCA”) distinguished S.L.’s factual circumstances from those present in In re G.R. The Fourth DCA noted that the facts of S.L.’s case were completely different. Unlike the mother in In re G.R., S.L. had made no progress on her case plan, had not seen S.A. more than a year, and resided out of state. The Fourth DCA therefore affirmed, concluding that the trial court had correctly applied the least restrictive means test as to S.A. individually.

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.

In this family law appeal, appellant, Former Wife, appealed an order finding her in civil contempt. This appeal stemmed from a final judgment of dissolution of marriage between the appellant and the appellee, Former Husband. Subsequent to entry of the final judgment, Former Husband filed a motion for civil contempt and enforcement, alleging that Former Wife failed to comply with provisions in the final judgment, as well as an agreed order entered by the trial court. Former Husband’s attorney filed this motion alleging the Former Wife failed to return Former Husband’s belongings.

A hearing was scheduled on Former Husband’s motion for civil contempt but prior to the hearing, Former Husband’s attorney informed Former Wife’s attorney that the hearing had been cancelled because the trial court made its ruling. Former Husband then provided the trial court with two proposed orders, both finding Former Wife in civil contempt, one of which was ultimately adopted by the trial court. The adopted order stated that “it is undisputed that Former Wife has willfully and wantonly violated the Agreed Order”; that “Former Wife has failed to meet her burden of proving that she either lacked or presently lacks the ability to comply with the Court’s Final Judgment and Agreed Order, or that she is not in willful non-compliance with lawful orders of this Court”; that Former Wife’s non-compliance was “willful and deliberate”; and that Former Wife “has the present ability to comply.”

The court reviewed the record and found that even though relevant evidence may have been presented during the preceding dissolution proceedings, Former Wife was still entitled to present evidence in the context of a civil contempt hearing. “A person facing civil contempt sanctions is entitled to notice and an opportunity to be heard.” Whitby v. Infinity Radio, Inc., 961 So. 2d 349, 355 (Fla. 4th DCA 2007). Because that civil contempt order was entered without an evidentiary hearing, the Fourth District Court of Appeal reversed and remanded this matter.

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.] **

United Automobile Insurance Company (“United”) appealed a county court order to the circuit court sitting in its appellate capacity. The circuit court panel believed that the order was not appealable as originally rendered, and issued an order to United to show cause why the appeal should not be dismissed. The circuit court then allowed United to obtain a corrected final order, but provided that the appeal would be dismissed if United failed to obtain the corrected final order before the record was transmitted. This was impossible because the record had already been transmitted at the time the circuit court issued that order. United obtained a corrected final order and filed an amended notice of appeal within five days. The circuit court still dismissed the appeal.

On certiorari review, the Fourth DCA held that the circuit court departed from the essential requirements of law and denied United due process by dismissing the appeal, since it was literally impossible for United to have complied with the order. The Fourth DCA granted the petition.