Published Appellate Decisions

Attorney ad Litem for D.K. v. Parents of D.K., 780 So.2d 301 (Fla. 4th DCA 2001).

When respondent mother filed her petition for dissolution of marriage, she alleged that she should have sole custody of the petitioner daughter because respondent father had sexually abused the child. Respondent father denied the allegations and requested primary residential custody. When petitioner daughter started high school, she first began treatment for various mental and behavioral problems. Shortly after she began treatment with her psychotherapist, she alleged for the first time that respondent father had sexually abused her when she was between three and seven years old. Petitioner argued that she had a privilege not to disclose the records of her psychotherapist. The appellate court concluded that the petitioner had a statutory privilege in the confidentiality of her communications with her psychotherapists. The appellate court’s conclusion that petitioner had a privilege which could be asserted, and which respondent parents could not waive or assert for the petitioner was limited to the facts of the case.

Full Link to dk v. parents of dk

Swift v. Swift, 617 So.2d 834 (Fla. 4th DCA 1993).
In the parties’ marital dissolution proceedings, respondent wife sought to compel petitioner’s psychiatrist to answer questions related his knowledge of any extramarital affairs petitioner may have had. Petitioner argued the information was privileged. The court first held that the psychotherapist-patient privilege could only be overcome upon a showing that the communication was relevant to an issue of mental or emotional conduct in any proceeding in which the condition was an element of a claim or defense. Additionally, the court held that the issue of extramarital affairs was relevant only upon a showing of both economic hardship and that the misconduct caused the economic hardship. Reviewing the record, the court held that respondent failed to prove the element of economic hardship, despite her claim that petitioner’s faithfulness was relevant to the issue of alimony. Additionally, the court rejected respondent’s claim that the information was discoverable merely to determine the credibility of petitioner’s deposition on the issue. Thus, the court quashed the order compelling petitioner’s psychiatrist to answer respondent’s counsel’s questions on the matter.

Full Link to Swift v. Swift

CASE CONCERNING PATIENT/PHYSICIAN PRIVILEGE
Wells v. Wells, 923 So.2d 1286 (Fla. 4th DCA 2006).
Court granted the former wife’s petition for certiorari and quashed the order requiring her to provide medical records showing when she became pregnant. The Court concluded that this was not a material fact, which should have been disclosed to the former husband when he entered into the marital settlement agreement, where, as in this case, the parties had entered into a separation agreement almost one year earlier. His argument that concealment of the fact of her pregnancy would be a ground to set aside the marital settlement agreement is without merit.

Full Link to Wells v. Wells

CASES CONCERNING SANCTIONS
Ries v. Ries, 984 So. 2d 612 (Fla. 4th DCA 2008).
The husband appeared at the final hearing with counsel. However, he did not move to set aside the default, file a financial affidavit, or respond to discovery. As a result, the trial court found that he either waived or was estopped from presenting evidence on the contested issues. As the husband was incarcerated, the trial court reserved jurisdiction on the issues of child support and visitation until he was released. The husband contended that the default should not have prohibited him from introducing evidence of marital property valuations and the issue of alimony because those items were akin to unliquidated damages. The appellate court held that while a defaulted defendant had the right under Fla. Fam. L.R.P. 12.440(a) and Fla. R. Civ. P. 1.440(c) to contest the amount of unliquidated damages and could offer evidence in mitigation thereof, the trial court also had the discretion under Fla. R. Civ. P. 1.380 to sanction a party for non-compliance with the rules. The trial court did not abuse its discretion in precluding the husband from producing evidence as a sanction for failing to comply with discovery.

Full Link to Ries v. Ries

Haper-Elder v. Elder, 701 So.2d 1230 (Fla. 4th DCA 1997).
Appellant wife and appellee husband were involved in dissolution proceedings. The trial court entered several orders sanctioning appellant wife for her noncompliance with appellee husband’s discovery requests. Ultimately, the trial court struck appellant wife’s pleadings for noncompliance with the court’s discovery orders, entered a default, and did not allow appellant wife to participate further in the dissolution proceedings. Thereafter, appellant wife sought appellate review of the default judgment. The court reversed and remanded because none of the trial court orders imposing sanctions, including the order striking appellant wife’s pleadings, contained the necessary express findings of willfulness required for entry of a default judgment. The court stated that on remand the trial court could conduct an evidentiary hearing for the limited purpose of having appellant wife present evidence of any mitigating or extenuating circumstances demonstrating that her noncompliance was not deliberate or willful. Alternatively, if the trial court determined that the noncompliance was not willful, it was directed to reinstate appellant wife’s pleadings. The court reversed the default judgment entered in favor of appellee husband and remanded for further proceedings, because none of the trial court orders imposing sanctions against appellant wife, nor the default judgment contained the necessary express findings of willfulness required for entry of a default judgment.

Full Link to Haper-Elder v. Elder

CASES CONCERNING ATTORNEYS’ FEES
Carlson v. Carlson, 719 So.2d 936 (Fla. 4th DCA 1998).
Appellant challenged the award of attorney fees to appellee in the circuit court’s order resolving a dispute on the interpretation of a marriage dissolution settlement agreement. The court reversed the award of attorney fees. The hearing before the special master was how the settlement agreement required appellant to pay appellee from his retirement funds. There was no testimony directed toward paying appellee’s attorney fees. As there was no consideration of any factor necessary to award fees, the grant of fees was reversed.

Full Link to Carlson v. Carlson

Love v. Gruner, 658 So.2d 1180 (Fla. 4th DCA 1995).
The attorney for appellant former husband was late for an evidentiary hearing on attorney’s fees. The court clock indicated that he was between two and five minutes late. Counsel was advised that the hearing had been conducted and concluded in his absence. Although at least twenty-five of the allotted thirty minutes remained, the lower court declined to reopen the case. The Fourth District Court of Appeal reversed, and held that appellant was deprived of an opportunity to be heard and defend against appellee’s unliquidated claims, notwithstanding a patently reasonable explanation for counsel’s tardy appearance. There was no indication of prejudice. If it had been necessary for sanctions to be imposed to insure the orderly administration of the court, they should have been such as to punish counsel and not the client. There was no allegation of willful misconduct.

Full Link to Love v. Gruner

McHugh v. McHugh, 819 So.2d 947 (Fla. 4th DCA 2002).
The court affirmed the post judgment order striking appellant’s claim for attorney’s fees on the ground that appellee litigated in bad faith. Appellant made no request for fees prior to final judgment, and the trial court did not reserve jurisdiction to award fees in the final judgment.

Full Link to McHugh v. McHugh

CASES CONCERNING ALIMONY
Weiser v. Weiser, 782 So.2d 986 (Fla. 4th DCA 2001).
On review, the appellate court found that child support for the two children had to be recalculated based on each parent’s net income for the shift in income based upon the alimony payment, pursuant to Fla. Stat. ch. 61.30(3)(a). It also ruled that husband was entitled to exclude the amount of alimony from his gross income and that wife had to include the alimony in her income make the proper income tax deductions. The appellate court also found that the trial court’s judgment automatically reduced the permanent alimony when the youngest child reached 18 or graduated from high school and held that it was error to provide for an automatic, future change or termination of alimony based upon the anticipated occurrence of a future event.

Full Link to Weiser v. Weiser, 2001

Weiser v. Weiser, 2000 Fla. App. Lexis 15448 (Fla. 4th DCA 2000).
At the time of their divorce, the parties had been married for 19 years and had 2 minor sons. The trial court found appellant’s income was $ 10,000 per month supplemented by $ 2,000 monthly gifts from his family. The trial court thus found appellant’s net monthly income for the purposes of calculating child support to be $ 12,000. The trial court awarded appellee $ 4,000 per month alimony until the parties’ youngest child reached age 18 or graduated from high school. At that time, the alimony would have been reduced to $ 2,500 monthly permanent alimony. The court also ordered appellant to pay appellee child support and attorney’s fees. Judgment was reversed and remanded on the issues of spendable income. The record was unclear as to whether the trial court intended the $ 4,000 monthly alimony to be taxable to appellee and excluded from appellant’s income. If this was the trial court’s intention, the incomes of the parties had to be recalculated on remand considering the parties’ income tax liability to arrive at their respective net incomes. Further, the automatic reduction of permanent alimony when youngest child reached 18 or graduated from high school was impermissible.

Full Link to Weiser v. Weiser, 2000

CASE CONCERNING BANKRUPTCY IN CONNECTION WITH A DIVORCE
Huey v. Huey, 643 So.2d 1141 (Fla. 4th DCA 1994).
Appellant husband and appellee wife reached a settlement agreement for the dissolution of their marriage. In the settlement agreement, appellant agreed to assume responsibility for certain marital debts. Appellant subsequently filed a petition under Chapter 7 of the Bankruptcy Code. Appellant sought to discharge some of the marital debts that he had assumed as well as to discharge attorney’s fees that he owed to appellee’s counsel. Appellee filed a petition in the trial court for a determination of the dischargeability of the debts as governed by 11 U.S.C.S. 523(a)(5)(B) (1988). The trial court held that these debts constituted support for appellee and thus were not dischargeable. The court affirmed the judgment of the trial court and concluded that it could not determine if the findings of fact of the trial court were clearly erroneous because appellant failed to supply the court with a transcript of the evidentiary hearing conducted by the trial court.

Full Link to Huey v. Huey

CASE CONCERNING INJUNCTIVE RELIEF
Parnarma v. Parnarma, 908 So.2d 541 (Fla. 4th DCA 2005).
In this pending dissolution of marriage action, the trial court entered an order directing the wife to deposit one-half of the proceeds of the sale of the husband’s former residence into her attorney’s trust account. The husband acquired the residence long before the marriage, but the property was later titled solely in the wife’s name. The sum was to be held pending the determination of ownership of the proceeds in the dissolution action. We affirm. The husband presented sufficient evidence at the first of two hearings on the issue to justify relief under section 61.11, Florida Statutes (2004), in that he testified to prior sales of his property by the wife without his knowledge and without any accounting to him of the proceeds of those sales. Although the wife contends that the court erred in ordering the transfer without requiring the posting of a bond, the wife did not request that a bond be posted, nor was there any evidence of damages to the wife should she later prevail. Thus, the wife waived any argument that the trial court’s order violated the bond requirement set forth in Florida Rule of Civil Procedure 1.610(b).

Full Link to Parnarma v. Parnarma

CASE CONCERNING CALCULATION OF CHILD SUPPORT
Daley v. Daley, 664 So.2d 79 (Fla. 4th DCA 1995).
The judgment modifying child support is affirmed in all respects except as to the amount of day care expense. The record reflects that amounts paid per week were based solely upon testimony which was clearly and specifically stricken by the court. On our review, we find no other record basis for the figures adopted by the court. Therefore, we reverse in part, and remand for recalculation of the day care portion of child support. We note additionally that the figure used in calculating day care includes a mathematical error as to the amount of the registration fee, which is apparently $ 6.66 per month rather than $ 66.00 per month.

Full Link to Daley v. Daley

CASE CONCERNING VISITATION
Walczak v. Walczak, 763 So.2d 1055 (Fla. 4th DCA 1999).
Appellant, former husband, Thomas Walczak, raises two issues in his appeal of the Final Judgment of Dissolution of Marriage entered in this case. He first argues that the trial court erred in failing to establish a visitation schedule for him, and second, argues that the court erred by imposing preconditions to any overnight visitation. We affirm as to both issues, writing only to discuss the second issue raised. The “tender years” doctrine has been abrogated by section 61.13(2)(b)1, Florida Statutes and in this district by opinion in Kuutti v. Kuutti, 645 So. 2d 80 (Fla. 4th DCA 1994)(en banc). Some of the trial court’s comments lead us to believe that his decision to impose limitations on overnight visitation was based partially on the “tender years” doctrine. This was [**2] error. Nevertheless, we affirm the trial court’s ruling because there is other evidence in the record to support his conclusions.

Full Link to Walczak v. Walczak

CASES CONCERNING CONTEMPT OF COURT
Vazquez v. Vazquez, 827 So.2d 384 (Fla. 4th DCA 2002).
The trial court found appellant to be in contempt; however, the order fails to comply with rule 12.615(d)(1), Florida Family Law Rules of Procedure, which provides: An order finding the alleged contemnor to be in contempt shall contain a finding that a prior order of support was entered, that the alleged contemnor has failed to pay part or all of the support ordered, that the alleged contemnor had the present ability to pay support, and that the alleged contemnor willfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based. See also Amend. to Fla. Family Law Rules of Proc., 723 So. 2d 208, 213-14 (Fla. 1998). This order, which states that appellant’s failure to comply with a prior order “was willful,” and that husband “has the ability” satisfies the first sentence of the rule but contains no recital of the facts on which the findings are based as required by the second sentence of the rule. Appellee argues that these findings, as required by the first sentence are sufficient, without more, to satisfy the rule. If appellee’s interpretation were correct, the last sentence in the rule would be meaningless. We construe the rule to require the trial court to identify the sources from which appellant could have obtained the funds to comply with a prior order. Reversed.

Full Link to Vazquez v. Vazquez

Miranda v. Miranda, 566 So.2d 16 (Fla. 4th DCA 1990).
During the parties’ marriage, appellant husband was a member of board of directors of a beach club. He sponsored appellee wife for a provisional membership in the club. After appellee filed a petition for dissolution of marriage, appellant withdrew his sponsorship. Appellee amended her petition requesting an order that appellant take action to restore her membership privileges. Thereafter, appellant wrote the president of the club to renew the membership. The members voted to reject the renewal. Appellee successfully filed an application for contempt. On appeal, the court determined that appellant could not be in violation of an order that was not clear and definite as to make him aware of the court’s command and direction. It held that the order of contempt was not proper where appellant merely failed to speak out at the meeting when that mandate was not evident from the final judgment. The court reversed the order.

Full Link to Miranda v. Miranda

CASE CONCERNING CHILD CUSTODY
Catone v. Catone, 698 So.2d 362 (Fla. 4th DCA 1997).
The trial court entered a final judgment dissolving the parties’ marriage, ordering, inter alia, that appellant husband pay appellee wife’s attorney fees and that the children’s custody was permanently awarded to appellee but that the parties were to set a status conference for the purpose of having the court review its determination of primary residential custody. The appellate court found that the trial court prematurely awarded attorney fees to appellee because such an award was required to be based upon the parties’ relative financial positions and that could not be determined until after completion of the equitable distribution of the parties’ assets, which had not yet been accomplished. Regarding custody, the appellate court found that the trial court had placed primary residential custody with appellee and that, in spite of the language of the later paragraph of the judgment ordering a status hearing, custody could not be modified unless there was a substantial change in circumstances and the children’s best interests warranted modification. The judgment of the trial court was therefore affirmed except for the award of attorney fees, which was reversed.

Full Link to Catone v. Catone

CASES CONCERNING SUBJECT MATTER JURISDICTION
Kriwinsky v. Kriwinsky, 609 So.2d 612 (Fla. 4th DCA 1992).
Appellant husband sought review of a trial court ruling granting appellee wife’s petition to enforce a final judgment and property settlement agreement. The court reversed, holding that no other proceedings were held after the parties obtained their divorce in Virginia, and whatever agreement that was purportedly entered into was never made part of a final decree. The trial court, stating that it was granting the petition, ordered that appellee recover the amount admitted to be unpaid under the draft agreement (which apparently was entered into and partially performed by the parties, and pursuant to which appellant made payments for several months), prejudgment interest, attorney fees and costs. The question was whether the trial judge had jurisdiction to grant such relief. The court held that he did not, concluding that no judgment existed either in Florida or Virginia which incorporated the terms of any property settlement agreement, so there was nothing to enforce in Florida.

Full Link to Kriwinsky v. Kriwinsky

Goodman v. Goodman, 671 So.2d 835 (Fla. 4th DCA 1996).
Petition is granted. The trial court has jurisdiction to enforce its final judgment of dissolution during the pendency of appeal, absent a stay.

Full Link to Goodman v. Goodman

CASE CONCERNING RELOCATION
Shafer v. Shafer, 898 So.2d 1053 (Fla. 4th DCA 2005).
Because the circuit court found that the mother’s relocation would not have allowed the father to exercise the specific visitation provisions in the final judgment, there was an implied restriction on her ability to relocate without consent or court approval. Thus, even without a request to relocate, it was not improper for the circuit court to consider the factors in Fla. Stat. ch. 61.13(2)(d) (2004) to decide whether to temporarily enjoin relocation. Moreover, the evidence supported the circuit court’s findings that relocation would not have been in the child’s best interests. Although the mother had provided frequent visitation in the past, evidence at the hearing regarding her recent actions supported the court’s finding that she was not likely to comply with substitute visitation. In contravention of the purpose of shared parental responsibility, for several months the mother concealed her plans to move to Orlando to attend law school, she made arrangements to move with the child, and she enrolled their son in public school, all without consulting the father until shortly before the move.

Full Link to Shafer v. Shafer

CASE CONCERNING PENSION PLANS
Hargrave v. Hargrave, 728 So.2d 366 (Fla. 4th DCA 1999).
Appellant husband challenged a trial court decision that awarded appellee wife one-half of appellant’s pension plan’s enhancement in value during the marriage as part of the final judgment dissolving the parties’ marriage. The appellate court reversed the decision of the trial court. The trial court erroneously deprived appellant of passive accumulations on his pre-marital interest in the plan. The clear language of the parties’ property settlement agreement indicated that appellee was only to receive one-half of the part of appellant’s pension plan that accrued during the marriage and interest thereon. Accordingly, the distribution to appellee should not have included any part of the value enhancement during the marriage that was due to passive accumulations of appellant’s non-marital pension portion.

Full Link to Hargrave v. Hargrave

CASE CONCERNING INTERPRETATION OF SETTLEMENT AGREEMENT
Carlson v. Carlson, 671 So.2d 280 (Fla. 4th DCA 1996).
The trial court construed a settlement agreement to require former husband to transfer approximately $ 612,000 in after-tax dollars to former wife. This construction could be supported only if the agreement were ambiguous. However, the trial court held that the agreement was not ambiguous and precluded former husband from presenting testimony that the intent of the parties’ settlement was exactly the opposite of the court’s interpretation. The ambiguity in the settlement agreement is whether the reference to “cash, investment grade securities” contemplates that such assets, when valued as they exist in retirement accounts, can be transferred to former wife by a qualified domestic relations order to meet former husband’s obligation under the agreement. We reverse and remand to the trial court for a hearing where each side may offer extrinsic evidence on the correct interpretation of the agreement.

Full Link to Carlson v. Carlson

CASE CONCERNING HABEAS CORPUS
Amann v. Bradshaw, 2007 Fla. App. Lexis 16840 (Fla. 4th DCA 2007).
The petition for writ of habeas corpus is granted. The order finding the former husband in civil contempt and ordering him taken into custody fails to comply with the requirements of Florida Family Law Rule of Procedure 12.615(d)(1). Vazquez v. Vazquez, 827 So. 2d 384 (Fla. 4th DCA 2002). Petitioner shall be immediately released from incarceration.

Full Link to Amann v. Bradshaw

CASE CONCERNING FOREIGN JURISDICTION
Coquin v. Coquin, 745 So.2d 1091 (Fla. 4th DCA 1999).
Appellant husband filed this appeal from a non-final order which denied his motion to dismiss his wife’s petition for dissolution. As a basis for our jurisdiction, appellant argues that the order determined venue. The only argument appellant makes in his brief is that he has an absolute right to be sued for dissolution of marriage only in France, but the only cases he cites stand for the proposition that where a contract is executed in another jurisdiction, the law of that jurisdiction “governs the interpretation of substantive issues relating to the contact.” The parties allegedly executed a prenuptial agreement in France. Appellant makes no argument that a French court would be a more convenient forum or any other argument involving venue. We therefore conclude, on our own, that we are without jurisdiction to entertain this appeal as an appeal from an order concerning venue under Florida Rule of Appellate Procedure 9.130(a)(3)(A). The appeal is dismissed.

Full Link to Coquin v. Coquin

CASE CONCERNING LIS PENDENS
Thomson v. Thomson, 751 So.2d 103 (Fla. 4th DCA 1999).
Petitioner husband sought certiorari review of an order dissolving a lis pendens as to a parcel of real property of the marriage so that it could be sold to a third party. He claimed that the wife would be able to dispose of the property prior to the determination in the dissolution action. The court found that the property was owned by a construction company which was run by both husband and wife, which wife desired to sell to resolve financial difficulties. The property was marital property, so the debts of the marriage, including those of the business, far exceeded the value of the property of the marriage. The court further found that the husband’s interest was not founded upon a duly recorded instrument, so the trial court could control and discharge the notice of lis pendens. The husband had not shown any abuse of discretion.

Full Link to Thomson v. Thomson

CASE CONCERNING HOLDER IN DUE COURSE
Barnett Bank of Palm Beach County, N.A. v. Regency Highland Condominium Assoc., 452 So.2d 587 (Fla. 4th DCA 1984).
A partnership obtained a loan from appellant bank to develop a condominium project and gave a promissory note to evidence the loan. A partnership trustee assigned to appellant as collateral for the last renewal note a note payable to the partnership with a face amount nearly double the value of the renewal note. The promissory note was executed by appellee condominium association and contained a legend regarding conditions. The partnership reneged on the last renewal note, and appellant sought to recover on the collateral note. Appellee claimed that the collateral note had not represented a lawful obligation and that the note was not negotiated to appellant for value and was thus subject to all defenses appellee had against the partnership. The trial court held that the note was not negotiable. The court reversed and held that the legend appearing on the face of the collateral note had not made the promise to pay conditional, since the legend contained no words explicitly limiting payment. Also, the court held that appellant was a holder in due course because appellant’s alleged activities had not shown a lack of good faith and notice under Fla. Stat. ch. 673.304(2).

Full Link to Barnett v. Regency

CASE CONCERNING MECHANICS LIEN Kozich v. Cusick, 675 So.2d 1048 (Fla. 4th DCA 1996).
We affirm the final judgment, including that portion dismissing Appellant’s statutory mechanic’s lien count for failure to join the owner of the liened property. As to that count, Appellant sought to foreclose a lien on the fee interest joining only a tenant, the contracting party, notwithstanding that the count was posed against the interest of the owner. Appellant did not seek to impose a lien upon the tenant’s leasehold interest by the count in question. Where the owner’s property securing a lien is in jeopardy, the owner is a necessary and proper party to the foreclosure.

Full Link to Kozich v. Cusick

† Name of case changed at the request of a litigant.