LibGuides: Christine N. Talaba: Case Law and Secondary Sources

Case Law

Diaz v. Diaz, 826 So. 2d 229 (Fla. 2002)
Attorneys Fees and Costs:
Assessing attorneys' fees against an attorney must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys' fees.
Mayo v. Mayo, 87 So. 3d 820 (Fla. 2d Dist. App. 2012)
Best Interest of Child and Visitation:
The court must consider the best interests of the child in setting the time-sharing schedule. Even if other parent has met the burden of showing a substantial change in circumstances.
Neely v. Neely, 691 So. 2d 39 (Fla. 1st Dist. App. 1997)
Modification of Child Custody:
In modifying original custody order, even if it is one that was entered pursuant to agreement between the parties, court must determine whether there has been substantial change in circumstances and whether welfare of child will be promoted by change in custody.
Hicks v. Hicks, 511 So. 2d 628 (Fla. 2d Dist. App. 1987)
Sole Parental Responsibility:
Court must find that awarding shared parental responsibility is detrimental to the best interest of the minor child before it awards sole parental responsibility.
Serio v. Serio, 830 So. 2d 278 (Fla. 2d Dist. App. 2002)
Childs Right to Support:
Parents may not waive their children's right to support because that right belongs to the children.
Child support is not a requirement imposed by one parent on the other; rather it is a dual obligation imposed on the parents by the State.
Karten v. Karten, 983 So. 2d 17 (Fla. 3d Dist. App. 2008)
Reduction of Child Support Upon Emancipation:
Father's child support obligation automatically terminated as each child attained the age of 18, as order modifying father's support obligation provided that obligation would terminate as “each child” attained age of 18, or upon other qualifying event, the “each child” phraseology meant that award was an allocated award, and reduced amount resulting from child reaching age 18 was retroactive to date child became 18, or had another qualifying event.
Freilich v. Freilich, 897 So. 2d 537 (Fla. 5th Dist. App. 2005)
Imputation of Income:
Factors to be considered in determining amount of income to impute for alimony awards, child support and attorney fees include recent work history, occupational qualifications, and prevailing earnings level in the community.
Sherlock v. Sherlock, NO. 4D15-365, 2016 BL 224234 (Fla.4th DCA July 13, 2016)
Imputation of Income from Non-Liquid Assets:
A divorce court did not abuse its discretion when in considering a husband's request for alimony it imputed a reasonable rate of return to his non-liquid assets, which consisted of real estate and financial holdings,
NOTE: This decision was rendered July 13, 2016, and is not final until disposition of timely filed motion for rehearing.
Moorehead v. Moorehead, 745 So. 2d 549, 552 (Fla. 4th Dist. App. 1999)
Requiring a Spouse to Maintain a Life Insurance Policy to Secure Alimony:
Requiring a life insurance policy is justified only if there is a demonstrated need to protect the alimony recipient. Such as an ill spouse, children at home, or the payor is in arrears.
Buttner v. Buttner, 484 So. 2d 1265 (Fla. 4th Dist. App. 1986)
Equitable Distribution:
Although property distribution need not be exactly equal, parties to dissolution proceeding are entitled to equitable distribution of marital assets.
Fact that title to property is held by one spouse is not determinative of question of whether property is marital property subject to equitable distribution upon dissolution of marriage; crucial inquiry should be whether property was legally and beneficially acquired by both or either of parties during marriage.
Whitesell v. Whitesell, 685 So. 2d 1344 (Fla. 2d Dist. App. 1996)
Spousal Efforts of Nonmarital Property Marital Asset:
While nonmarital property's appreciation due to marital efforts of either spouse is considered marital asset, property retains its nonmarital character.
Randall v. Randall, 56 So. 3d 817 (Fla. 2d Dist. App. 2011)
Engagement Ring Non-Marital Property:
The court held that engagement ring was a gift, made upon implied condition that a marriage ensue, and therefore was wife's nonmarital property which was not subject to equitable distribution upon the parties' divorce

Secondary Sources

Florida Family Law and Practice- Alimony and Support Support issues are addressed by the family court judge after determination of parental responsibility and equitable distribution. Alimony and child support are governed by statute and primarily based on need of the receiving spouse and ability of the paying spouse. Significant statutory changes affecting alimony were effective July 1, 2010 and July 1, 2011. The statutes and case law governing alimony and child support have extensive requirements of findings of fact. The statutory factors must be addressed whether the court grants or denies an alimony award. Type of alimony, duration of the marriage, and especially presumptions and burdens of proof significantly affect an alimony award. After an award of alimony is determined, the family court judge addresses child support. Child support is also governed by presumptions, especially that the child support guidelines amount should be awarded, subject to the statutory factors for deviation and adjustment. This chapter addresses Florida statutory and case law on these support issues and provides practical guidance to the family lawyer in representing a spouse, alternatives for amicable resolution, and trial preparation and presentation.
Florida Family Law and Practice- Discovery and Use of Experts Discovery is one area of the family law practice in which the intent of the rules always has been and still is that discovery is to be achieved with a minimum of or no judicial involvement. Only a few of the provisions for the various forms of discovery require motion and order. Discovery in a family law case is less and less similar to discovery in other civil cases and is intended to be so. The lawyer doing the occasional family law case should beware. For example, mandatory disclosure in family law cases is unique and automatic. The burden has shifted from the party seeking the disclosure required to obtain the information to the party responding to the disclosure required to obtain the information. There is a duty to supplement disclosure and responses to discovery in two separate family law rules of procedure, Rules 12.280(a) and 12.285(c), not found in the rules of civil procedure. Family law requires special expertise in the area of discovery.
Florida Family Law and Practice- Enforcement of Orders and Judgments This chapter discusses how orders and judgments in family law cases can be enforced. It covers the Florida version of the Uniform Interstate Enforcement of Support Act and discusses application of the Uniform Child Custody Jurisdiction and Enforcement Act to the enforcement in Florida of a child-custody determination made by a court of another state. This chapter also discusses how to use the Enforcement of Foreign Judgments Act, contempt proceedings, and various other means to enforce family law judgments and orders.
Florida Family Law and Practice- Equitable Distribution and Property Issues An equitable distribution of marital assets and liabilities must begin with the presumption that it should be equal, unless there is justification for an unequal distribution. Florida recognizes a marital partnership concept. Both parties' contributions to and participation in the marriage are considered, inside or outside of the home, and a trial judge must ensure that neither spouse passes automatically from misfortune to prosperity, or from prosperity to misfortune; in viewing the totality of the circumstances, one spouse should not be short-changed. Statutory factors guide the family court judge's determination. This chapter covers the substantive and procedural law dealing with equitable distribution and property issues. It also addresses the practical aspects of representing the client. Therapeutic justice is relevant to these issues, and how a family lawyer proceeds has long-lasting effects on the family. Processes and procedures should incorporate alternative dispute resolution and deal with the emotional dissolution of marriage, so that the parties can concentrate on the financial issues and completion of the tasks required to effect an equitable distribution.
Florida Family Law and Practice- Family Law Proceedings and Grounds This chapter assists the family lawyer to identify actions and grounds that may be applicable in the Florida family law case. Family law practice is primarily statutory. The governing statutes are found in Florida Statutes Chapter 61. The Florida family lawyer should keep in mind the purposes of Chapter 61, which are to preserve the integrity of marriage and to safeguard meaningful family relationships, to promote the amicable settlement of disputes that arise between parties to a marriage, and to mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.
Florida Family Law and Practice- Parental Responsibility Effective October 1, 2008 are the most far reaching changes to parental responsibility in twenty-six years in the state of Florida. Some might argue that the new changes only relate to nomenclature; however deleting custody, primary residential parent, rotating custody and requiring a detailed parenting plan in every case goes far beyond just terminology.
Florida Family Law and Practice- Paternity and Parenting by Unmarried Parents This chapter is intended to provide the family law practitioner with the similarities and differences not only in substantive law, but also in practice and procedure. The chapter assists the family lawyer to identify actions and grounds that may be applicable in the Florida paternity case, and the differences between representation of the unmarried mother and the unmarried father. Standing, jurisdiction, service and service of process, emergencies, domestic violence, temporary relief, parental responsibility, discovery, trial and evidence are different in a paternity case and this chapter is intended to provide assistance to the family lawyer in navigation of the complex area of the law that encompasses paternity issues.
Florida Family Law and Practice- Pleadings and Mandatory Electronic Filing Pleading practice and procedure is different under the therapeutic justice family court. Family lawyers now recognize the result of years of acknowledgment that court should be the last resort in family law and trials are detrimental to their clients and their families. Family lawyers are primarily transactional lawyers rather than litigators. The goal is to minimize conflict and to promote amicable resolution.
Florida Family Law and Practice- Temporary Relief This chapter addresses all forms of temporary relief, as well as use of general magistrates and hearing officers, enforcement and contempt of temporary orders. Emergencies and nonemergencies are distinguished and what is appropriate for temporary relief is addressed. Emergencies are the subject of a separate chapter. However, under therapeutic justice, unless there is an emergency circumstance with the potential of immediate and irreparable harm, attempts at amicable resolution should precede going to court for relief. The chapter sets forth what constitutes reasonable prior investigation and interventions so that court is properly considered a last resort. The chapter addresses the common sense of temporary relief so that the family lawyer can make the appropriate analyses as to the benefits and detriments of seeking temporary relief from the court. Finally, the chapter outlines specifically how to do a temporary relief hearing in 30 minutes, and when, why, and how to do a case management conference in conjunction with a temporary relief hearing.
West's Florida Practice Series: Florida Family Law- Alimony Spousal support is the general term for court-ordered transfer payments from one spouse or former spouse to the other. It is called “maintenance” when it is ordered during a marriage without the existence of a divorce proceeding; when ordered at any other time, it is called alimony.
West's Florida Practice Series: Florida Family Law- Child Custody his chapter addresses the general law of custody, under which every case involving responsibility for a child must be analyzed. This includes: (1) the state's statutory scheme for determining who may exercise custody of a child; (2) constitutional limits on that authority; (3) territorial limits on a state's jurisdiction over a child; (4) the state's statutory duty to take custody of a “dependent” child; and (5) the state statute providing for custody by extended family members.
West's Florida Practice Series: Florida Family Law- Child Support Each parent has a duty to provide for the basic needs of his or her minor child. 1 When parents live apart, the parent who does not reside with the child is often required by child-support law to make a financial contribution to the other parent for the benefit of the child. The amount of any child support to be paid is determined by a statutory formula primarily based on the incomes of the parties, also taking into account any health care or day care costs.
West's Florida Practice Series: Florida Family Law- Marital Rights and Obligations The parties to a marriage owe each other a duty of financial support during the marriage and in some cases afterwards. 1 Each has the right to invoke the marital evidentiary privilege 2 to prevent the other from testifying to communications made between wife and husband although the privilege does not extend to suits between the spousessuch as dissolution proceedings. 3 There was a time when each spouse enjoyed immunity from tort suits by the other but that immunity was abolished by the Florida Supreme Court in 1993.
West's Florida Practice Series: Florida Family Law- Paternity Paternity is the determination of legal father status—of who has the legal rights and responsibilities of being a child's parent. The legal result usually, but not always, follows biology. The legal father is listed as such on the official birth certificate,
West's Florida Practice Series: Florida Family Law- Time-Sharing and Custody Disputes Parents are the joint guardians of their children, but they do not always agree on where the child will live, or on the child's education, spiritual instruction, discipline, activities, or medical treatment. Disputes over the parenting of children are especially likely to occur when parents are separating and angry at each other for other reasons, and the structure of divorce law fans the flames. The transformation to no-fault divorce has left little outlet for venting animosity in the financial aspects of the proceedings. Parties bent on acrimony have nowhere to channel it other than a custody battle. The Florida law of parental child custody can be understood as a conscientious and concerted effort to deny satisfaction to those baser instincts

Links to Additional Secondary Sources

Florida Family Law This publication by Matthew Bender discusses Marriage, Torts and Family Relationships, Marital Property, Dissolution of Marriage, Parent-Child Relationships, and Other Procedures.
Florida Jurisprudence 2d- Family Law The article discusses the husband and wife relationship; its attendant responsibilities and liabilities; and the criminal responsibility peculiar to that relationship. The parent and child relationship is discussed, including the rights and liabilities of parents and children generally; parents' rights and liabilities relating to the custody, education, care, and support of their children; the legitimacy of children, proceedings to establish paternity and to require support, and the legitimation of children; the adoption of children; and criminal responsibility attendant to the parent and child relationship.