Florida Case Summaries
In Fazzaro v Fazzaro 38 Fla.L. Weekly 578, the District Court of appeal found that the trial court abused its discretion by giving the former wife final decision-making authority over matters involving the parties child should the parties be unable to agree then by including in the parenting plan provisions assigned to the wife ultimate responsibility for the child’s education and non-emergency healthcare.
The court made no oral or written findings on the factors governing parental responsibility the record reveals no logic or justification for the final judgments provision granting one-party ultimate responsibility over all decisions affecting the child should the parties be unable to agree. The effect of the trial court order gave one parent complete control over all decision-making, which undermines the intent of the child custody statute regarding shared parental responsibility.
In Weissman v Weissman 37 Fla. L. Weekly D2819, the appellate court found that the trial court deprived a former husband of his right to due process by preventing him from having any contact with his children for 90 days where the decision was based on recommendations of a treatment program and the former husband was never provided notice earn opportunity to be heard on the issue. The court found that extraordinary circumstances justified immediately placing the oldest child in a treatment program, but there was no extraordinary circumstances presented which justified preventing visitation or contact for 90 days upon the family’s return from the program without first affording the former husband notice and an opportunity to be heard.
The court addressed disestablishment of Paternity in Schultz v Schultz 37 Fla. Weekly D2865, and found it was error to deny husband’s petition to disestablish paternity where he proved by under rebuffed scientific evidence that he was not the biological father of children born during the marriage to the children’s mother.
The case was remanded with instructions to enter a new final judgment of dissolution reflecting that the husband was not the father of the children.
The court in Gray v Gray 37 FLA. L. Weekly D 2862 found that the trial court abused its discretion by awarding a former wife permanent periodic alimony in an amount that exceeded her claimed need without making findings regarding wifes need the amount awarded in husband’s ability to pay that amount.
The parties met when the former husband was in medical school. The wife had worked in advertising and public-relations. The parties had four sons and after 17 years of marriage, the former husband filed a petition for dissolution of marriage. At the time of the dissolution, the parties children ranged in age from five years to 12 years. At the time of the final hearing the former husband earned a gross salary of $220,000. The former wife had not been employed since 1999, when the parties mutually agreed that she would stay home and care for the children. The trial court awarded the former wife permanent periodic alimony in the amount of $30,000 per month. The appellate court stated in considering an award of alimony under section 61.08 {2}| Florida statutes, the trial court must consider whether either party has an actual need for alimony and whether either party has the ability to pay alimony, and then examine all relevant and economic factors including but not limited to the nine factors identified in the statute and any other factor necessary to do equity and justice between the parties. Where a trial court does not make the required findings, the record must reveal competent substantial evidence supporting the trial court’s decision. Absent any specific findings to support the trial court’s decision and without competent substantial evidence in the record the trial court’s determination not to impute income to the former wife must be reversed and remanded.
February 13, 2013 In Campbell v Campbell the court held that the trial court was without jurisdiction to vacate a modification order while an appeal of that very order was pending. The trial court entered a final judgment of dissolution of marriage, adopting a parenting plan which the child was to reside with the former wife and former husband was to have time-sharing with the child every other weekend. The parenting plan barred either party from relocating if the time-sharing schedule the other parent would be disturbed.
The former husband filed a motion to hold the former wife in contempt for violating the parenting plan by removing the minor child in direct violation of the court’s previous order. The trial court held an evidentiary hearing and granted a modification of the parenting plan. The new parenting plan made the former husband the primary residential parent with the former wife having time-sharing every other weekend. The former wife filed an appeal of the trial court’s modification order and then requested that the trial court maintain the status quo of the original custody/time-sharing order.
It is well settled that the trial court lacks jurisdiction to consider a motion to vacate an order while there is a pending appeal on the very order that the moving party seeks to vacate. Once the former wife filed her notice of appeal as to the modification order, the trial court was divested of jurisdiction to consider her later motion to vacate the very order under consideration by this court. The District Court of appeal concluded the trial court had no jurisdiction to enter an order purporting to vacate the modification order.
In Edgar v Firuta 37 Fla. L. Weekly D2596, The parties were married in 1996. They had four children at the time of their divorce in North Carolina in 2005. The North Carolina judgment did not include any provisions regarding custody, parental responsibility, visitation or child support. In 2010 the father filed a supplemental petition to modify a parenting plan and other relief in Monroe County Circuit Court in Florida. The fathers petition did not ask for any relief regarding the three older children. The petitions sought sole parental responsibility of the youngest child for the father, with limited supervised visitation for the mother. The fathers petition sought an injunction to prevent removal of the youngest child from the jurisdiction based on the fear that the mother or others would take the child to North Carolina. The mother subsequently filed a notice of intent to relocate with the children proposing that the youngest child join the mother and the other three minor children at their home in North Carolina. The psychiatrist appointed interviewed the youngest child and provided a relocation evaluation report to the court. The psychiatrist reported that the youngest child wanted to live with a mother and siblings in North Carolina in it was not recommended to separate siblings at her developmental stage. The mother left with the youngest child to North Carolina in violation of the court’s prior ruling. The mother obtain counsel and filed a verified civil complaint against the father in North Carolina asking the court to assume jurisdiction and to determine custody of all four minor children.
The court in Munroe County set all pending matters and found that it was in the youngest child’s interest to be returned to Florida as ordered and the father was granted sole parental responsibility and exclusive time-sharing with her with limited supervised time for the mother. The court found that a parents relocation of a minor child without complying with the statute may be taken into account by the court in considering a petition for modification or relocation. It is clear that the trial court’s ruling on modification and on the parenting plan were based on the mother’s actions in removing the children to North Carolina rather than on an evidence-based assessment of the best interests of the child. Punishment of the mother for violation of a court order may affect but does not include the inquiry regarding the trial court’s assessment of the best interest of the child for purposes of section 61.13. The mother’s argument on this point is well taken and the final judgment modifying the prior order of parental responsibility, visitation, time-sharing was reversed and remanded for further proceedings.