Order of alimony reversed to include husband’s business income

In  NEWMAN n/k/a FARRELL  v. NEWMAN, 42 FLW D1244b (Fla. 4th DCA) in consolidated appeals in case no. 4D14-4842, 4D15-0792 and 4D15-1324 in an opinion filed on  May 31, 2017 the only issue with merit was the Wife’s challenge to the court’s alimony determination, which was reversed where it was apparent from the record that Former Husband’s claim that he was earning no income from his charter business was “incredulous.” Although the actual amount of income was not established at trial, this was because of Former Husband’s wrongful conduct in failing to comply with Former Wife’s discovery requests and the court’s ensuing orders. Under these circumstances, it was error for the trial court not to consider Former Husband’s charter business income when making its alimony determination. Remanded for a redetermination of Former Husband’s ability to pay alimony after enforcement of  prior discovery orders. In the event Former Husband refuses to comply, the court should assign a value to his charter business income as equity requires.

Full Opinion Follows:

(DAMOORGIAN, J.) In these consolidated appeals, Marybeth Newman (“Former Wife”) and Jon Newman (“Former Husband”) each challenge aspects of the final judgment dissolving the parties’ seventeen-year marriage (case no. 14-4842) and Former Husband challenges the court’s entry of separate money judgments for sums awarded in the final judgment of dissolution (cases no. 15-0792 and 15-1342). We find merit in Former Wife’s challenge to the court’s alimony determination as reflected in the final judgment of dissolution, and reverse and remand for further proceedings. Finding no merit in the remaining arguments raised by the parties, we affirm the remainder of the final judgment of dissolution and ensuing money judgments without further comment.

The parties were married in 1995 and Former Wife filed her petition for dissolution of the marriage in August of 2012. During the course of the marriage, Former Husband operated several marine related family businesses and Former Wife was a stay-at-home mother. The parties enjoyed a comfortable middle-class lifestyle throughout the marriage, acquiring a house in a nice neighborhood and a 41′ custom-built boat with little debt. In her petition, Former Wife asked for temporary and permanent periodic alimony as well as child support for the parties’ minor children.

From the inception of the dissolution proceedings, Former Husband was less than cooperative in providing Former Wife with adequate discovery regarding the value of his business interests and income. This was especially true as it pertained to a boat-chartering business run by Former Husband, Dykoke Enterprises, Inc. In each of his financial affidavits, Former Husband claimed that he earned no income from the charter business and did not assign a value to his interest in the business. Despite Former Wife’s multiple requests for production as well as the trial court’s order compelling Former Husband to produce the requested records, Former Husband failed to produce invoices or adequate bank records relating to his charter business.

The case proceeded to trial wherein Former Wife testified that after filing for dissolution, she began working as a housekeeper and earned approximately $20,000 a year. Former Wife testified that after factoring in the cash Former Husband earned from his charter business, Former Husband actually earned more than double what he was reporting in his tax returns and financial affidavits. She testified that over the last four years, Former Husband chartered an average of four trips a week and charged upwards of $1,000 per trip. Based on Former Husband’s representations to her during their marriage, Former Wife believed Former Husband earned about $70,000 a year cash operating his charter business. She admitted that she did not have proof of this, but explained that it was because Former Husband refused to provide her with the business and financial records she requested.

Former Husband’s forensic accountant, on the other hand, testified that the only asset of Dykoke Enterprises, Inc. as of the date of Former Wife’s petition was a bank account containing $99. Although the accountant was not provided with any tax returns for the company, he opined that Former Husband did not earn any income from Dykoke Enterprises, Inc. and testified that Former Husband’s average annual income was around $66,560. Former Husband testified that his charter business did not generate any revenue past the carrying costs for the boat. This was despite the fact that he admitted to having clients such as the Discovery Channel, National Geographic, the BBC, and the University of Miami who he charged a day.

Considering the evidence, the court denied Former Wife’s request for permanent periodic alimony. Although the court found that Former Wife had a need for alimony, it also found, after making a balancing payment and paying child support, Former Husband would not have enough liquidity or leftover income to pay alimony. The trial court found that Former Husband’s net monthly income for purposes of determining his ability to pay alimony was $4,325. In arriving at this figure, the court did not consider any income from Former Husband’s charter business, explaining that there was “insufficient proof” of the amount. This was despite its findings that Former Husband’s testimony was “incredulous” and that the lack of proof was because “[Former] Husband did not provide in discovery the invoices or all of the bank statements necessary to determine the actual earnings of his charter boat business.” We hold that the court’s ability to pay determination was error.

Section 61.08, Florida’s alimony statute, provides that when determining the proper type and amount of alimony, the court must consider “[a]ll sources of income available to either party.” § 61.08(2)(i), Fla. Stat. (2012). The court must do the same when making a need and ability to pay determination. Mills v. Mills, 62 So. 3d 672, (Fla. 2d DCA 2011) (reversing and remanding an alimony determination because “the trial court did not include the value of the former husband’s business income or the value of in kind payments made on his behalf when it determined the former husband’s ability to pay”); Smith v. Smith, 575 So. 2d 228, 229 (Fla. 2d DCA 1991) (trial court erred when making its ability to pay determination by not considering all sources of income available to husband).

Section 61.046 broadly defines “income” as follows:

[A]ny form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, compensation as an independent contractor, worker’s compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government, or any unit of local government. United States Department of Veterans Affairs disability benefits and reemployment assistance or unemployment compensation, as defined in chapter 443, are excluded from this definition of income except for purposes of establishing an amount of support.

  • 61.046(8), Fla. Stat. (2012).

“Florida case law has long recognized that self-employed spouses, in contrast to salaried employees, have the ability to control and regulate their income. Their testimony, tax returns, and business records accordingly may not reflect their true earnings, earning capability, and net worth.” Ugarte v. Ugarte, 608 So. 2d 838, 840 (Fla. 3d DCA 1992). Thus, when the circumstances suggest that a self-employed spouse has not accurately reported his or her income, the court may properly assign a higher income value than that claimed by the spouse. See Child v. Child, 34 So. 3d 159, 161 (Fla. 3d DCA 2010). This is especially true when the spouse fails to comply with discovery orders and does not disclose all pertinent financial information. See Nadrich v. Nadrich, 936 So. 2d 15, 18 (Fla. 4th DCA 2006) (“Under the circumstances and in light of the husband’s failure to comply with many discovery orders to disclose his financial information, the court had no choice but to impute some amount of income to the husband beyond what his pay stubs showed.”).

Here, it was apparent from the record that Former Husband was earning some income from his charter business. Indeed, the trial court found that Former Husband’s claim to the contrary was “incredulous.” Although the actual amount of income earned was not established at trial, this was because of Former Husband’s wrongful conduct in failing to comply with Former Wife’s discovery requests and the court’s ensuing orders. Under these circumstances, it was error for the trial court not to consider Former Husband’s charter business income when making its alimony determination. Therefore, the case is reversed and remanded for a redetermination by the trial court of Former Husband’s ability to pay alimony. Upon remand, the court should enforce its prior discovery orders. In the event Former Husband refuses to comply, the court should assign a value to his charter business income as equity requires.

Affirmed in part, reversed in part, and remanded. (GERBER and FORST, JJ., concur.)

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Injunction for protection against repeat violence/stalking requires evidence of two incidents

IN THE CASE OF  KRIEBEL v. PIEDRAHITA,  42 FLW D1263a (Fla. 4th DCA) in case no. 4D16-1658. May 31, 2017, Order granting injunction for repeat violence/stalking reversed where evidence presented was to only one incident of violence and statute require two incidents of violence or stalking.

Full opinion follows:

(KUNTZ, J.) Melissa Kriebel appeals the court’s “Final Judgment of Injunction for Protection Against Repeat Violence” entered against her and in favor of Nathalie Piedrahita. The record before us does not substantiate two incidents of violence or stalking committed by Kriebel. Therefore, we reverse.

Kriebel asserts that this matter “is predicated on an extramarital affair between Ms. Piedrahita and Ms. Kriebel’s husband and the concomitant effects of Ms. Piedrahita’s incessant presence around Ms. Kriebel’s husband (not a party to the repeat violence action) during a time when Ms. Kriebel believed she and her husband were trying to reconcile their marriage.”

Viewed through that lens, it may not be surprising that Kriebel and Piedrahita do not get along. This animosity led Kriebel and Piedrahita to both seek injunctions for protection against repeat violence against the other.

The court held an evidentiary hearing on the competing injunction requests at which Kriebel, represented by counsel, and Piedrahita, appearing pro se, presented evidence as to the facts in their respective sworn petitions. Unfortunately we do not know the exact testimony given at the hearing because neither party retained a court reporter. Instead, five months after the hearing, Kriebel filed a motion for entry of statement of the evidence pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). Incorporated within the motion was an eleven page statement of the evidence prepared by counsel for Kriebel.

Absent approval of the statement of the evidence we would have lacked an adequate record to review the court’s order. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). At the same time, and as we have noted in the past, “[e]xpecting a trial judge to confirm the details of a trial, months and numerous other intervening trials later, where the parties do not agree, is not realistic.” Rivera v. Rivera, 863 So. 2d 489, 490 (Fla. 4th DCA 2004).

In this case too, it was unrealistic for Kriebel to expect confirmation of her eleven-page statement of the evidence, especially more than five months after the evidentiary hearing. However, to the judge’s credit, the court was able to recall the details of the hearing. The court not only approved the statement of the evidence, but also added details that Kriebel had omitted.

The approved statement of the evidence indicates that the court entered injunctions against both parties based upon a finding “that the parties were unable to control themselves around each other and in order to maintain civility it was necessary to enter Final Injunctions for Protection Against Repeat Violence.” While it may be accurate to state that the parties were unable to control themselves around each other, the statute requires more before an injunction can issue. Power v. Boyle, 60 So. 3d 496, 498 (Fla. 1st DCA 2011).

The statute “create[s] a cause of action for an injunction for protection in cases of repeat violence.” § 784.046(2), Fla. Stat. (2016). “Repeat violence” is defined as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” § 784.046(1)(b). Stalking is defined as “willfully, maliciously, and repeatedly” following, harassing, or cyberstalking another person. § 784.048(2).

The approved statement of the evidence demonstrates that Piedrahita established one incident of violence by battery and one incident of following. However, stalking requires repeatedly following, harassing, or cyberstalking, and Piedrahita only established one such incident. Having only presented evidence of one incident of following, Piedrahita failed to satisfy the requirements for stalking.

Based upon the approved statement of the evidence, Piedrahita failed to establish the statutory requirements of “two incidents of violence or stalking,” and the Final Judgment of Injunction for Protection Against Repeat Violence entered against Kriebel is reversed.

Reversed. (CIKLIN, C.J., and GROSS, J., concur.)

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Evidence of prior incidents of violence supported injunction-no argument to lack of due process where no objection at trial level

IN THE CASE OF FADDIS V. LUDDY, 42 FLW D1359a (Fla. 3rd DCA) in case no. 3D16-337 in an opinion filed on June 14, 2017 Order of injunction for protection against domestic violence affirmed finding no merit to argument of lack of due process for allowing evidence of prior acts of violence in and basing injunction on same where no objection was made at the trial level. and petition put defendant on notice that prior incidents were being alleged.

Full opinion follows:

(Before SALTER, EMAS and LUCK, JJ.)

(LUCK, J.) Michael Faddis appeals a final judgment of injunction for protection against domestic violence entered against him and in favor of his ex-girlfriend, Katherine Luddy. We affirm.

Faddis met Luddy when Luddy worked as a fitness model for one of Faddis’ fitness videos. The couple dated for approximately three years, living together at Luddy’s Miami Beach apartment for approximately the last one and a half years. The couple experienced difficulties in their relationship, which Faddis attributed to Luddy’s anxiety and depression, and Luddy to Faddis’ controlling nature. In any event, on November 24, 2015, Luddy filed a petition for injunction for protection against domestic violence against Faddis.

The petition specifically alleged an incident occurring on November 22, but also generally referred to various prior instances of Faddis’ abusive behavior which occurred prior to the November 22 incident. A hearing was held at which Luddy appeared pro se, and Faddis was represented by counsel. Each party testified to their version of events.

According to Luddy, the couple had spent the night of November 21 at her apartment, but began to argue the morning of November 22. Luddy claimed the argument started when Faddis insisted she call her psychiatrist to increase the dosage of her medication, and Luddy refused. When Luddy requested that Faddis leave her alone, Faddis became enraged, grabbed Luddy, and slammed her against the refrigerator. Luddy asked Faddis to leave or she would call the police. Faddis took Luddy’s cellular telephone away from her, and continued to scream at Luddy while pinning her against a wall. Faddis then threw Luddy on the bed, turned her on her stomach, and spanked her. Luddy managed to lock herself in the bathroom, and after a time Faddis left the apartment. Luddy reported the incident to the police, who advised her to change her locks and get a restraining order. Faddis continued calling and texting Luddy after the incident. The following day, Faddis banged at her apartment door, but Luddy did not let him in.

In response to the trial court’s questioning, Luddy admitted Faddis had restrained her on prior occasions. She testified to an incident which occurred on June 22 where Faddis kept hitting her with her own arm against the side of the head and Luddy locked herself in her car to get away from Faddis. During cross-examination, Luddy also referred to an incident were Faddis shut a door and severed her finger. Faddis did not object to this testimony.

Faddis portrayed the couple’s relationship quite differently. He claimed most arguments arose from financial issues because Luddy was not making much money and owed Faddis money for negotiating her modeling contracts and managing Luddy’s social media accounts. Faddis claimed that when he restrained Luddy, he was trying to protect her because she was depressed, anxious, and suicidal.

The trial court found: Luddy’s testimony credible; she had been the victim of domestic violence; and she had cause to believe that she would be a victim of domestic violence. Based on these findings, the trial court granted the petition, and entered the injunction, which Faddis now appeals. Faddis contends the trial court: (1) denied him due process by considering the testimony regarding prior incidents other than the one from November 22 alleged in the petition; and (2) erred in entering the injunction because Luddy failed to produce sufficient and objective evidence that she had cause to believe she was in imminent danger of domestic violence.

We reject Faddis’ due process argument for two reasons. First, Faddis did not object to Luddy’s testimony, and therefore, did not preserve the issue for appellate review. See Archurra v. Archurra, 80 So. 3d 1080, 1082 (Fla. 1st DCA 2012) (holding that husband’s argument that trial court relied on testimony and evidence from a prior proceeding without proper judicial notice was not preserved for appellate review because the husband did not object at the hearing). Second, Luddy’s petition did put Faddis on notice, in advance of the hearing, that there were prior instances of violence. The petition alleged, for example, that Faddis “[p]reviously . . . physically abused” Luddy, and had threatened her with a weapon (which was different than the allegations for the November 22 incident). Luddy, specifically, alleged in the petition that Faddis had “physically assaulted [her] countless times throughout their relationship, slapping [her], punching her, pushing and shoving her and/or pinning her on the floor or against the walls.” Faddis, Luddy wrote, “also threatened [her] with a knife, on one occasion.” This was sufficient to put Faddis on notice that there were prior instances of violence, they were numerous, and involved slapping, punching, pushing, and pinning. The trial court recounted these allegations at the beginning of the hearing, and Faddis’ counsel cross-examined Luddy about the prior instances of violence. This satisfied the due process requirements of apprising Faddis of the nature of the allegations and affording him an opportunity to present his objections. See De Leon v. Collazo, 178 So. 3d 906, 908 (Fla. 3d DCA 2015) (“To be sufficient, notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (quotation omitted)).

As to whether there was sufficient evidence to support the injunction, Faddis misunderstands the trial court’s findings. The trial court may grant a domestic violence injunction for either one of two reasons: the petitioner is the victim of domestic violence; or he or she has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence. § 741.30(6)(a), Fla. Stat. (2016). “Domestic violence,” in turn, is “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” Id. § 741.28(2).

Here, after the evidentiary hearing, the trial court made two findings: that Luddy had “been the victim of domestic violence”; and “she’s [had] cause to believe that she would be a victim of domestic violence in the future.” Faddis contends that there was insufficient evidence supporting the trial court’s cause-to-believe finding, but he never addresses the trial court’s other finding that Luddy was the victim of domestic violence. Either finding allows the trial court to grant an injunction, and in this case, there was sufficient evidence that Luddy was the victim of domestic violence. The trial court credited Luddy’s testimony that Faddis pinned her against the refrigerator, and later spanked her. This was battery by one household member on another, which is domestic violence.

For these reasons, we affirm the trial court’s final judgment of injunction.

Affirmed.

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State wage information used to impute income to Father who did not respond in child support case

In the case of GAUT v. DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM, and  HANSEN, 42 FLW D1341a (Fla.2nd DCA) in case no. 2D16-1619 in an opinion filed on June 9, 2017, Administrative order affirmed as to use of state wage information to impute income to father for purposes of calculating his child support obligation where father failed to respond, However order reversed as to use of that amount retroactively to determine arrearage amount and remanding for the Department to recalculate his retroactive child support obligation using the income information it has from the state for that time period.

Full opinion follows:

(VILLANTI, Chief Judge.) Christopher Joseph Gaut appeals the Final Administrative Paternity and Support Order rendered by the Department of Revenue, Child Support Enforcement Program (the Department). Gaut raises two points on appeal: (1) the Department erred in determining his current child support and (2) the Department erred in determining his retroactive child support. As explained below, we affirm in part and reverse in part.

We affirm on the first point inasmuch as the Department requested income information from Gaut and provided him with notice advising him of his right to participate and to request a hearing. Moreover, the Department correctly could and did utilize available state wage information to calculate Gaut’s current child support obligation. See § 409.2563(5)(a), Fla. Stat. (2016) (“[T]he department may proceed on the basis of information available from any source, if such information is sufficiently reliable and detailed to allow calculation of guideline schedule amounts . . . .”). Because Gaut failed to provide income information or to participate in the proceedings below, he cannot complain for the first time on appeal that the court utilized the statutorily permissible methodology to calculate his current child support obligation.

In contrast, on the second point the Department acknowledges that it incorrectly used Gaut’s current child support obligation calculation to also determine his retroactive obligation. Moreover, because the Department had state wage information for the time period in which retroactive child support was due, and because the income information for the two timeframes differed, “the Department ought not to [have] ignore[d] the information in its own files” when it calculated Gaut’s retroactive child support due. Salters v. Dep’t of Revenue ex rel. Mobley, 32 So. 3d 777, 778 (Fla. 2d DCA 2010); see also § 61.30(17)(a), Fla. Stat. (2016).

Therefore, we affirm as to Gaut’s current support obligation but reverse as to Gaut’s retroactive support obligation. We remand for the Department to recalculate his retroactive child support obligation using the income information it has from the state for that time period.

Affirmed in part, reversed in part, and remanded with directions. (CRENSHAW and BADALAMENTI, JJ., Concur.)

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Child support modified for parent who failed to exercise parenting time, but not prospectively

IN the case of ANDREWS v.  ANDREWS, 42 FLW D1340b (Fla. 2nd DCA) in case no. 2D16-238 in an opinion filed on June 9, 2017, Order modifying child support reversed and remanded with directions for the trial court  tol amend the final order to reflect Former Wife is only responsible for payment of child support from the date she first failed to exercise her time-sharing  to the date the final order was rendered Noting that if the Former Wife continued to fail to exercise her time-sharing, Former Husband could seek further modification of the child support award and a modification of the time-sharing schedule.

Full Opinion follows:

(SLEET, Judge.) Lisa G. Andrews challenges the trial court’s final order granting her former husband James P. Andrews’ motion for modification of alimony and child support. In the order, the trial court concluded that Mr. Andrews had established a substantial and unanticipated change of circumstances and reduced his alimony and child support obligations. We reverse only that portion of the court’s order that directs Mrs. Andrews to pay $521 a month in child support to her former husband prospectively until the parties’ second oldest child’s eighteenth birthday. We affirm the final order in all other aspects.

Section 61.30(11)(c), Florida Statutes (2015), allows for modification of a child support award based on one parent’s failure to exercise the parties’ time-sharing schedule, and the statute directs that modification shall be retroactive to the date the parent first failed to exercise time-sharing. Here, the trial court made a finding that Mrs. Andrews had failed to exercise her time-sharing since September 1, 2014, but it did not order a modification of the parties’ time-sharing schedule. As such, we conclude, and Mr. Andrews concedes, that Mrs. Andrews’ prospective monthly payment of the $521 was not warranted. See Buhler v. Buhler, 83 So. 3d 790, 792 (Fla. 5th DCA 2011) (recognizing that “[b]y its nature,” a parent’s failure to exercise time-sharing “occurs over a period of time” and that pursuant to section 61.30(11)(c), “during that time frame” the other parent is entitled to a modification in the child support award (emphasis added)).

On remand, the trial court shall amend the final order to reflect that Mrs. Andrews is only responsible for the $521 payment from September 1, 2014 — the date she first failed to exercise her time-sharing — to December 16, 2015 — the date the final order was rendered. If in the future Mrs. Andrews continues to fail to exercise her time-sharing, Mr. Andrews may seek further modification of the child support award and a modification of the time-sharing schedule. We affirm the final order in all other respects.

Affirmed in part, reversed in part, and remanded. (CASANUEVA, J., and CASE, JAMES, R., ASSOCIATE SENIOR JUDGE, Concur.)

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TAX CONSEQUENCES ON HUSBAND’S NET INCOME MUST BE CONSIDERED IN ALIMONY AWARD

IN LIBRIZZI v.LIBRIZZI, 42 FLW D1339b (Fla. 2nd DCA) in case no. 2D15-2919 in an opinion filed  on June 9, 2017, portion of the order awarding alimony to the former wife reversed because the trial court erred when it failed to consider the former wife’s evidence as to the tax consequences of the support determination. Case remanded for recalculation and directions for the trial court to consider evidence of the tax consequences of the support award on the former husband’s net income.

Full opinion follows:

(SLEET, Judge.) The former husband, Robert Librizzi, appeals and the former wife, Karen Librizzi, cross-appeals the final order dissolving their twenty-five-year marriage. The former husband challenges the equitable distribution scheme, the alimony award, and the award of attorney fees to the former wife. The former wife contests the alimony award, arguing that the trial court should have considered the tax implications of the award on the parties in making its determination pursuant to section 61.08(2)(h), Florida Statutes (2012). Because the former husband’s arguments regarding equitable distribution are either unpreserved, without merit, or both, we affirm the equitable distribution scheme without further comment. We also affirm the trial court’s determination of the former wife’s need for support and the portion of the order requiring the former husband to maintain a life insurance policy to secure his support obligation. However, we reverse the portion of the order awarding $6918.75 in alimony to the former wife because the trial court erred when it failed to consider the former wife’s evidence as to the tax consequences of the support determination.

The magistrate initially recommended $9500 in monthly alimony for the former wife in its recommended dissolution order. After the circuit court partially granted the former husband’s exceptions to the recommended order, a second magistrate held a limited hearing to reconsider specific elements of the equitable distribution scheme and the support award, including to make a determination of the former husband’s net income. During the hearing, the former wife submitted calculations of the former husband’s net income that included a tax credit consistent with the $9500 alimony award. Although the calculations were based on evidence admitted at trial, the magistrate declined to consider them. The magistrate also declined to hear any testimony from the former wife’s CPA, who was present at the hearing. Instead, the magistrate based his calculation of the former husband’s net income on the former husband’s 2014 financial affidavit, which reflected an annual tax liability of over $60,000. Significantly, the former husband’s CPA had previously testified that the 2014 affidavit did not include tax deductions related to the payment of any alimony to the former wife. The former wife’s CPA testified consistently with this assessment before the first magistrate, saying that there was no support for the $60,000 annual tax liability and that the alimony payments would reduce the former husband’s tax obligation. After the hearing, the second magistrate recommended reducing the alimony award to $6900. The circuit court denied the former wife’s exceptions to this order and adopted the magistrate’s recommended order in full.

This court reviews an alimony award for an abuse of discretion. Crick v. Crick, 78 So. 3d 696, 698 (Fla. 2d DCA 2012). Section 61.08(2)(h) requires that the trial court consider “[t]he tax treatment and consequences to both parties of an alimony award.” This court has consistently held that “[i]t is error for the trial court to fail to consider tax implications of an alimony award when such evidence is presented.” Tarkow v. Tarkow, 128 So. 3d 82, 85 (Fla. 2d DCA 2013) (quoting Farley v. Farley, 800 So. 2d 710, 712 (Fla. 2d DCA 2001)). Accordingly, it was error for the magistrate to award alimony without considering the former wife’s evidence regarding the tax consequences of the award on the former husband’s net income and error for the circuit court to deny the former wife’s exceptions and approve the recommended award. We reverse the amount of the alimony award and remand for recalculation. On remand, the trial court shall consider evidence of the tax consequences of the support award on the former husband’s net income.

The former husband also challenges the trial court’s award of fees to the former wife. However, because the order on appeal only determines entitlement, not the amount of the fee award, this court lacks jurisdiction to review the issue. See Smith v. Smith, 169 So. 3d 220, 221 (Fla. 2d DCA 2015). Accordingly, the former husband’s appeal of the fee award is dismissed for lack of jurisdiction.

Affirmed in part; reversed in part with instructions; dismissed in part. (VILLANTI, C.J., and SALARIO, J., Concur.)

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Order denying adoption on grounds that it facilitated immigration status reversed

IN MARIA DOLORES RODRIGUEZ vs. IN RE: THE ADOPTION OF MARIANA ANDREA RODRIGUEZ, 42 FLW D1209a (Fla. 3rd DCA) in case no. 3D16-2191. L.T. Case No. 16-18708 in an opinion filed on May 31, 2017. Order denying Petition for adoption of adult on public policy grounds reversed finding that even if a trial court may deny a legally sufficient petition to adopt an adult on public policy grounds, no such grounds were present in this case as the public policy of Florida expressly permits the adoption of adults; and if as a result, the adoptee becomes entitled to a benefit authorized by law, it cannot be said that the adoption is in violation of public policy. The trial court correctly found that the petition was not accurate and therefore was insufficient. The remedy, however, was dismissal of the petition with leave to amend rather than denial. reversed and remanded.

Full opinion follows.

(Before SALTER, FERNANDEZ and LOGUE, JJ.)

(FERNANDEZ, J.) Appellant, Maria Dolores Rodriguez, appeals the denial of her petition to adopt her adult niece. The final order denying the petition reads, in pertinent part, as follows:

Denied as the only valid reason given for this adoption is to facilitate the adoptee’s immigration desires. The Adoptee has not lived with the Petitioner “always” as alleged. The Adoptee just came here this year but it was alleged that she lived with Petitioner “always” — but Petitioner lived here 11 years without the adoptee. Adoptee did not tell me her cousin lived w/ petitioner & her. Claimed Adoption would provide “protection” which is not true either given proposed adoptee is an adult.

The Petition for Adoption of Adult by Aunt, did indeed include the allegation that the prospective adoptee “has always lived under my roof and I want to provide her with legal and familial protection.” Based on the trial court’s finding, that allegation in the petition is false.

Chapter 63, Florida Statutes (2016), provides the statutory scheme that governs adoptions. Sections 63.102 and 63.112 establish the required content of the petition. Section 63.042 establishes who may adopt and who may be adopted. None of the relevant provisions of chapter 63 establish the consideration of public policy as a factor to be considered by the trial court in deciding whether to grant or deny the petition. The Fifth District Court of Appeal had an opportunity to consider the denial of an adult adoption petition in the matter of In re Adoption of Holland, 965 So. 2d 1213 (Fla. 5th DCA 2007). In Holland, the grandfather wanted to adopt his adult grandson in order to take advantage of a program for disabled veterans that provided financial aid to the children of the veteran, but not to the grandchildren. Id. at 1214. The trial court concluded:

The final issue is whether this court should participate in the petitioner’s plan to adopt his grandchildren so that they can obtain federal aid not otherwise available to them. If Congress had intended for grandchildren to have these benefits it would have made them available to them. Surely, Congress did not intend the result which the petitioner and his other family members are trying to accomplish in this case. The court finds that the petitioner and his family are working together to obtain from the United States government benefits that Congress did not intend for the Adoptee and consequently, the petition should be denied because it violates public policy and is repugnant to the laws of Florida.

Id. The Fifth District held:

Even assuming that a trial court may deny a legally sufficient petition to adopt an adult on public policy grounds, no such grounds are present here. The public policy of Florida expressly permits the adoption of adults. § 63.042(1), Fla. Stat. (2007). If, as a result, the adoptee becomes entitled to a benefit authorized by law, it cannot be said that the adoption is in violation of public policy.

Id.

Chapter 63 does require the filing of a verified, truthful application for adoption. The trial court correctly found that the petition was not accurate and therefore was insufficient. The remedy, however, was dismissal of the petition with leave to amend rather than denial. See Yancey v. Dep’t of Health and Rehab. Servs., 413 So. 2d 438 (Fla. 3d DCA 1982) (where the facts or circumstances of abandonment or any other necessary allegations were not fully and adequately set forth in the petition, the appropriate ruling would have been a dismissal with leave to amend). We therefore reverse and remand with directions to dismiss the petition with leave to amend.

Reversed and remanded with instructions.

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CHILD SUPPORT CANNOT BE MODIFIED PRIOR TO DATE OF FILING

IN BIRKMIREv. BIRKMIRE, 42 FLW D1289A (Fla. 5th DCA) in case no. 5D15-2893 in an opinion filed on June 2, 2017.  Court reversed award of retroactive modification of child support only as to date remanding with directions to reduce child support to date of filing and recalculate credit accordingly.

Full opinion follows:

(PER CURIAM.) We determine that Appellant’s challenge to the order of modification of child support is meritorious in one respect. The trial court erred in retroactively modifying support to a date before the petition seeking the relief was filed. Galperin v. Galperin, 862 So. 2d 10, 12 (Fla. 2d DCA 2003). On remand, the court shall order the reduction in child support retroactive to December 4, 2012, and recalculate Appellee’s credit accordingly. In all other respects, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED. (TORPY, EVANDER and WALLIS, JJ., concur.)

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Imputing income for child support/alimony purposes requires evidence party could actually earn that income

IN DOTTAVIANO v. DOTTAVIANO, 42 FLW D1289b (Fla. 5th DCA) in case no. 5D16-1322 in an opinion filed on June 2, 2017. Award of child support and alimony reversed and remanded finding the trial court’s imputation of income in this case was not supported by substantial, competent evidence and remanding with direction to recalculate both without imputing any income to Wife and to include omitted expenses from calculation of need for alimony. In ordering partition of marital home  trial court directed to assign wife’s share based on actual selling price.

Full Opinion Follows:

(PER CURIAM.) We remanded this cause to the trial court to reconsider the imputation of income to Appellant, alimony, and child support, as well as for partition of the marital home. Dottaviano v. Dottaviano, 170 So. 3d 98 (Fla. 5th DCA 2015). Upon remand, the trial court again imputed income to Appellant, albeit in a slightly smaller amount. Appellant once again challenges this conclusion. We agree with Appellant that the trial court erred in imputing income to her. We also conclude that the trial court erred in calculating Appellant’s monthly need and in setting her equity share in the former marital home.

Pursuant to section 61.30(2)(b), Florida Statutes, once a trial court finds a party is underemployed, it must consider the party’s “employment potential and probable earnings level” based on “recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available.” While a court may impute income to a spouse earning less than she could with the use of her best efforts, there must be competent, substantial evidence supporting the determination that the spouse could earn the imputed amount. LaFlam v. LaFlam, 854 So. 2d 809, 810 (Fla. 2d DCA 2003). The trial court’s imputation of income in this case was not supported by substantial, competent evidence. Accordingly, on remand, the trial court shall recalculate alimony and child support without imputing any income to Appellant.

In addition, the trial court erred in rejecting some of Appellant’s monthly expenses in computing her need. Without explanation, the trial court omitted the amounts Appellant listed for payments on her car, entertainment for her and the children, club dues and memberships, monthly gifts, religious contributions, education expenses, and tax liability on alimony. Conversely, the court allowed similar expenses for Appellee in computing his net income. On remand, the trial court shall re-compute Appellant’s monthly need, including these expenses, unless it provides a specific explanation for their exclusion.

Lastly, although the trial court complied with our instruction to order the partition of the martial home, it determined Appellant’s share of the equity based upon the assumptions made under its prior order granting Appellee possession of the home. On remand, the trial court shall compute Appellant’s equity share based upon the home’s actual selling price.

REVERSED AND REMANDED. (TORPY, EVANDER and WALLIS, JJ., concur.)

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Ask Governor Scott to veto HB 590!

Dear Family Law Section Members,   The Family Law Section has a standing position against, and has steadfastly refused to endorse, the establishment of any kind of “presumptive” timesharing schedule for Florida’s children and families.  Last year, thanks in large part to the diligent efforts of many of our Section members, Governor Scott vetoed a proposed “50/50 timesharing presumption” in family law cases in Florida.  It has become necessary for us to contact Governor Scott to oppose yet another attempt by the Florida Legislature to adopt a presumptive timesharing plan.   Throughout this year’s Legislative session, the Family Law Section has opposed pending legislation that would impact how Department of Revenue (DOR) administrative child support cases are handled.  In response to this legislation, in February our Section adopted a formal standing position to oppose “any legislation that permits the administrative establishment of a timesharing schedule or parenting plan.”  I have attached a copy of the enrolled version of SB 590 for your reference – please read it so that you are fully versed on the issue.    Should SB 590 be signed into law by Governor Scott, it would introduce into Chapter 409 a requirement that the DOR, and the Administrative Law Judges (ALJs) handling these cases, encourage parents to enter into agreed timesharing plans.   Notably, the proposed “Title IV-D Parenting Time Plan” would contain a presumptive minimum schedule for the parent paying child support.  The presumptive minimum schedule is this: two weekend nights with the child(ren) every other week, along with other limited periods of time, though less than 20% of the child(ren)’s time in a typical year.  These proposed “Parenting Time Plans” would be handed, or mailed, to parents by the DOR, a state agency whose very clear and limited mission is the collection of money.  Also, these agreed-upon Parenting Time Plans would not be actual enforceable orders, but rather would be unenforceable by the ALJs, the DOR or any court.   Despite the Section’s consistent opposition to SB 590 in both bodies of the Florida Legislature, and despite our efforts to work with the Bill sponsors, this DOR Time Plan Bill was first approved by the Senate, and then later, in the final hours of session on Friday May 5th, by the House of Representatives.  The enrolled version of SB 590 will soon be heading to Governor Scott for his consideration.  We urge you to contact Governor Scott now, to voice your opposition to Senate Bill 590, and insist that he veto this bill.  Governor Scott’s contact information is as follows:                                                   Telephone: 850-488-7146                                     Email: Rick.scott@eog.myflorida.com   Thank you.

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