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.

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.

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.