Valencia v. Deutsche Bank National Trust Company, 4D09-3297
June 22, 2011

The Fourth District addressed an appeal of an order granting summary final judgment in favor if the lender in a foreclosure proceeding.  The complaint had alleged December 1, 2003 as the date of the borrower’s default. The mortgage required that the lenders provide the borrowers written notification of the default that included the action necessary to cure the default, and gave the borrowers thirty days to comply. The lenders were unable to produce a hard copy of the letter that was actually sent to the borrowers. Instead, the lenders produced two possible letters that could have been sent to the borrower. Both letters contained a cure date of October 8, 2003. The actual letter was found by the borrowers after the summary judgment hearing. It contained a different cure date and a different amount owed than the complaint and the two hard copies produced by the lender.  The Fourth District held that there was a genuine issue of material fact because of these differences, and reversed the order of summary judgment.

Cissel v. Cissel, 4D09-3029 & 4D10-1324
June 22, 2011

The Fourth District wrote to address an appeal of an alimony award and child support.  The court below found the former husband, appellant, to have a gross monthly income of $18,109.  The figure was based on his average earnings during the preceding fourteen months of trial.  The appellant argued that this error.  The Fourth District held that although it was acceptable to use this average, it was error to base any support from this figure in this case.  Citing §61.08(2)(i), Fla. Stat. (requiring consideration of all sources of income available to either party), the Fourth District found the trial court to have failed to deduct the husband’s undisputed business expenses.
The Fourth District also found error in the trial court’s award of alimony to former wife.  The trial court had only made findings as to the length of the marriage and the $20,000 per month standard of living that exceeded the parties’ incomes.  On appeal, the Fourth District again referred to §61.08(1), Fla. Stat. (requiring findings of facts relative to the factors enumerated in subsection (2) supporting an award of alimony).  Additionally, the court noted that the marital standard of living is not a useful guide in awarding alimony where the marital lifestyle costs more than the parties’ earnings.  Nichols v. Nichols, 907 So.2d 620, 623 (Fla. 4th DCA 2005).  The Fourth District reversed and remanded.

L.K. v. Department of Children and Families, 4D10 – 5124
June 15, 2011

The Fourth District Court of Appeal addressed a final order terminating L.K.’s parental rights as to her daughter, G.B. The Department initiated dependency proceedings regarding G.B and took her into the Department’s custody. Shortly thereafter, L.K. was incarcerated for narcotics. The evidence showed that during L.K.’s incarceration, she made several attempts to contact G.B. as well as inquire about G.B’s general well-being through another family member. The Department then filed a petition for termination of parental rights on the basis of abandonment.  The trial court held that L.K. had not made a sufficient effort to establish a substantial relationship with G.B. and that it was in the child’s best interests to terminate her parental rights.  In so finding, the trial court ruled that L.K’s attempts to substantially comply with her case plan were irrelevant to its determination of abandonment.

L.K. argued that the trial court erred in excluding evidence that L.K. substantially complied with her case plan.  The Fourth District agreed.  In reversing, the Fourth District cited B.T. v. Department of Children and Families, which held that incarceration is a factor that can be considered in abandonment cases, but the parent’s efforts to assume parental duties while incarcerated must also be considered in light of the limited opportunities to assume those duties while in prison.  16 So.3d 940, 941 (Fla. 5th DCA 2009).  The Fourth District held that the trial court should have considered L.K.’s attempts to substantially comply with her case plan before terminating her parental rights.

Bryan v. State of Florida, 4D10-632
June 15, 2011

The Fourth District Court of Appeal wrote to address a trial court’s order denying a motion to suppress evidence obtained during a warrantless search.  Acting on an anonymous tip, police were dispatched to investigate a call about three black males in front of a home by a white sports utility vehicle (“SUV) with narcotics and a gun.  When police arrived, only the white SUV was present that coincided with the tip.  The officers heard voices from the backyard and proceeded to enter through a gate into the appellant’s back yard.  When the officers reached the back door, they noticed marijuana inside the home through a broken window and smelled marijuana coming from the house.  After verifying that one black male was inside the home, the officers performed a protective sweep of the home, for the safety of those on the street, to see if the other male was inside the house with a weapon. The trial court upheld the warrantless entry, finding that the tip was corroborated when the white SUV was spotted and when drugs were spotted inside the home.

On appeal, the Fourth District cited Fla. Dep’t of Agric. & Consumer Servs. v. Haire, 836 So.2d 1040, 1057 (Fla. 4th DCA 2003) that held that any area within the curtilage of the home deserves the same protection as the home itself.  The Court also noted that the possession of a gun, without more, would not justify the intrusion, and that an anonymous tip without any signs of past, present, or future criminal activity cannot give rise to a constitutional stop or search.  Relgalado v. State, 25 So.3d 600, 606-607 (Fla. 4th DCA 2009). In reversing the denial of the motion to suppress, the Fourth District held that no exception to the warrant requirement applied. The Court held that the officers “entered the curtilage of the home acting solely on an anonymous tip” and that there was no indication a crime had been, was being, or would be committed. Since the police entry into the backyard was illegal, the entry into the home based on the sight of the marijuana gained as a result should have been suppressed.

Barrueta v. State of Florida, 4D10-2084
June 15, 2011

The Fourth District Court of Appeals addressed an appeal from a revocation of probation and resulting judgment and sentence. The appellant was on probation following a conviction on one count of trafficking in cocaine and one count of conspiracy to traffic in cocaine. The State later obtained revocation of appellant’s probation and the trial court sentenced appellant on both of those counts. On appeal, appellant argued that the trial court erred in sentencing appellant on the conspiracy count because the State’s warrant failed to allege a violation as to that count. The Fourth District agreed, relying on Baker v. State, 750 So. 2d 1115, 1116 (Fla. 4th DCA 2000). As a result, the Fourth District reversed the revocation, judgment, and sentence as to the conspiracy count, although it affirmed on the trafficking count. The Fourth District also remanded for entry of a more specific and detailed written judgment.

A.L.T. v. State of Florida, 4D10 – 2278
June 8, 2011

The Fourth District wrote to address whether a police search exceeded the scope of the suspect’s consent.  A.L.T., a child, was stopped by Officer Mandell of the Fort Lauderdale Police Department.  He asked A.L.T. specifically if he could “search him for weapons or drugs.” A.L.T. consented. Officer Mandell removed a wallet from A.L.T’s pocket which did not belong to A.L.T.  A records check of the address on driver’s license in the wallet revealed that a burglary occurred six days prior at that address.

A.L.T. was arrested. He waived his Miranda rights and confessed to the burglary.  The State charged A.L.T. with burglary and grand theft. The defense filed a motion to suppress and argued that the discovery of the victim’s driver’s license and A.L.T’s confession exceeded the scope of A.L.T.’s consent.  The Fourth District agreed.  “The standard for measuring the scope of a consent under the fourth amendment is objective reasonableness.  There is no bright-line test for determining the scope of consent to a warrantless search.”  Allen v. State, 909 So.2d 435, 438 (Fla. 5th DCA 2005).  The Fourth District held that a typical reasonable person would have understood Officer Mandell’s request to mean “a search for weapons and drugs, not an open invitation to remove all the contents from one’s wallet.”  The Fourth District reversed the denial of A.L.T.’s motion to suppress.

Konz v. Konz, 4D09-4454
June 1, 2011

The Fourth District addressed an issue of valuation regarding a marital residence during a dissolution of marriage proceeding.  At the time of the marriage, appellant, husband owned a home that had a fair market value of $380,000 with a $25,000 mortgage.  During the marriage, the home was demolished and the mortgage was paid off.  The parties built a new home on the same lot, with a fair market value of $520,000.  In the equitable distribution, the trial court treated the entire home as a marital asset and equally divided the equity.

On appeal, the husband argued that the trial court failed to award him a portion of the value of the home as a nonmarital asset. The Fourth District disagreed, holding that the former husband failed to meet his burden to establish the value of the nonmarital portion of the marital home.  See Jahnke v. Jahnke, 804 So.2d 513, 517 (Fla. 3d DCA 2001).  There was no evidence of the value of the lot by itself, which would have qualified as the nonmarital portion of the value of the marital home, when the original house was torn down.  The Fourth District noted that the failure to prove the nonmarital value of the lot distinguished the case from Oldham v. Oldham, 683 So. 2d 579, 580 (Fla. 4th DCA 1996). The Fourth District affirmed the equal equity distribution of the marital residence.