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.

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.

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.

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.

Parris v. Silveira and Parris
Case No. 4D11-3006

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.

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.

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.