Law Offices of Robin Bresky Obtains Disqualification of Judge in Guardianship Case

Fourth DCA Case 4D13-368

The Law Offices of Robin Bresky recently prevailed in an original proceeding, a petition for writ of prohibition, to prevent the trial judge from presiding over further proceedings in a guardianship case where our client is the spouse and designated healthcare surrogate of the ward.

The American judicial system is built upon the principle of an impartial court where every litigant will be heard and treated fairly. A trial judge can be disqualified from further activity in a case if bias or prejudice is shown to a party and places that party in reasonable fear of not getting a fair trial or hearing. That is what happened at a hearing where the court made a critical decision about the guardianship of our client’s husband.

On review by the Fourth District Court of Appeal, the appellate court concluded that the judge’s acts of excluding the spouse from the courtroom, striking (refusing to consider) her testimony on the basis of a perceived insult to the judge, and making negative personal comments about the spouse, would lead any reasonably-prudent person to fear that she would not receive a fair hearing before the judge.

The appellate court also concluded that the judge’s actions and personal comments “far exceeded comments or actions necessary to control his courtroom and were sufficient to evidence to a reasonable person bias requiring disqualification, even if the judge may have felt that he had no bias.” Thus, the Fourth DCA granted the petition for disqualification and the case was assigned to a different judge.

The Law Offices of Robin Bresky continually fights for justice for our clients. We handle a wide variety of appeals and original petitions in state and federal appellate courts and are available to assist other lawyers with litigation support such as drafting or responding to motions to dismiss, motions for summary judgment, motions for rehearing, and other substantive motions in the trial court.

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.

Finnegan v. Deutsche Bank National Trust Co., 4D11-939

Deutsche Bank filed a mortgage foreclosure action alleging that Finnegan had failed to make payments on the promissory note. Deutsche Bank claimed that all conditions precedent to acceleration of the note, and the foreclosure action, had occurred. The mortgage document specified as a condition precedent that Deutsche Bank could not commence a foreclosure action without providing Finnegan notice of the alleged breach and an opportunity to correct it. Finnegan filed an answer in which she claimed she had not received notice of default in compliance with the mortgage provisions. Deutsche Bank sought summary judgment. Finnegan filed an affidavit again swearing that she had not received notice. Deutsche Bank filed unsworn notice letters it had allegedly sent to Finnegan. The trial court granted summary judgment in favor of Deutsche Bank.

On appeal, the Fourth District Court of Appeal (“Fourth DCA”) held that summary judgment was improper in this case. The Fourth DCA held that Finnegan’s affidavit swearing that she never received the notice created an issue of material fact that precluded summary judgment. The Fourth DCA also noted that the bank’s unsworn letters in support of its motion for summary judgment did not satisfy the procedural requirements regarding affidavits summary judgment. The Court reversed the summary judgment of foreclosure and remanded for further proceedings.

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.

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, 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.

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.] **

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.

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.