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Holiday child custody and visitation was recently discussed by the Florida Court of Appeal in a case captioned Glevis v. Glevis.   In this case, the Husband and Wife met in a foreign country.  After they dated for a few years, the Husband brought the Wife to the United States.  The parties got married in the United States.  The Wife became pregnant, and the couple’s relationship deteriorated.  The Husband moved out of their home.  Eventually, the parties got back together.  The Husband found a job in Tampa, Florida, but the Wife refused to move to Tampa.  The Husband then found a home for the family in Bonita Springs.  After an argument, the Husband moved out of the marital home.  A dissolution of marriage proceeding was held.  The trial court awarded the Husband exclusive time-sharing with the baby.  Subsequently, the Wife was awarded supervised time-sharing.

When the trial court created a parenting plan for the parties, it did not include holiday custody and visitation with the child.  The Florida Court of Appeal ruled that when a court awards time-sharing to both parties, rotating holiday time-sharing is required unless there is a factual basis that justifies the denial of holiday time-sharing.  Since the trial court in Glevis v. Glevis denied the Wife holiday time-sharing without making the required factual findings, the trial court’s decision was reversed.

Additionally, in Glevis v. Glevis, the Magistrate recommended that the parties have shared parental responsibility, and awarded the Husband ultimate decision making authority.  Florida statutes require that in making determinations regarding parental responsibility, the best interests of the children govern.  In Florida, trial courts are directed to order shared parental responsibility unless there is a showing that it would be detrimental to the best interests of the parties’ children.  With shared parental responsibility, major decisions involving the children’s welfare are made after both parents have the opportunity to confer and reach an agreement. When courts determine that it would be detrimental for the children to have shared parental responsibility, courts may award sole parental responsibility.

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A Modification of Child Custody and Visitation case was recently decided by the Florida Court of Appeal in a case captioned Romeo v. Romeo. In this case, the former husband and former wife were divorced in 2007. The Final Judgment dissolving their marriage contained an agreed upon time-sharing schedule for their minor children. The former husband filed a Supplemental Petition for Modification of Time-sharing. After a hearing, the trial court granted the former husband’s request for a modification of the parties’ time-sharing schedule for their minor children. The trial court awarded additional time-sharing to the former husband, and altered the parties’ holiday time-sharing schedule. The lower court also lowered the amount of the Husband’s child support.

In the case captioned Romeo v. Romeo, the Florida Court of Appeal reversed the trial court’s ruling. The Appellate Court ruled that in order to award a custody modification, a trial court must find that there has been a material, substantial, and unanticipated change of circumstances.

In the modification of custody case at bar, the trial court failed to include this finding in its Supplemental Final Judgment. Additionally, the former husband argued that the former wife agreed to a change in the parties’ time-sharing arrangement by allowing the former husband to spend time-sharing with their children on alternate Sundays. The Florida Court of Appeal stated that consent by a parent to permit the other parent to spend extra time-sharing with their children does not create a basis for a modification of time-sharing.

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In a recently decided alimony case captioned Harkness v. Harkness, the wife appealed the final judgment dissolving her marriage and awarding her durational alimony. The husband and wife were married for more than nineteen years. During the marriage, the husband worked full time, and the wife was a stay at home mother raising the parties’ children. After the wife petitioned for dissolution of marriage, she found a job earning substantially less than her husband. In the Final Judgment dissolving the marriage, the trial court ruled that there was no basis for awarding permanent alimony to the wife because she has the capacity to financially sustain herself. Therefore, the trial court awarded her durational alimony for five years. The Florida Court of Appeal reversed this decision.

In reaching its determination, the Florida Court of Appeal stated that in deciding whether or not to award alimony, the trial court is required to first make a determination as to whether one of the parties has a need for alimony, and the other party has the ability to pay. After making this determination, the trial court is to decide which type of alimony is most appropriate. There is a rebuttable presumption that a marriage of seventeen (17) years or longer is a long-term marriage. There is also a rebuttable presumption that a trial court should award permanent alimony for a long-term marriage.

The purpose of permanent alimony is to provide for the necessities and needs of the recipient as they were established during the course of the marriage. It is not intended to divide the parties’ future income in order to create financial equality.  Permanent alimony is inappropriate when there is not a permanent inability on the part of the recipient to become self-sustaining. Alimony is intended to avoid, when possible, having a former spouse pass from always having more than enough, to having only enough to pay for the essentials of shelter, clothing, and food.

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An alimony case was recently decided by the Florida Court of Appeal in a case captioned Baron v. Baron.  In Barron v. Barron, the Wife appealed a Final Judgment of Dissolution of Marriage that denied her request for permanent periodic alimony. The parties were married for twenty years. Rather than awarding the former wife permanent support, the trial court awarded her durational alimony for twelve months.

In reaching its decision, the Florida Court of Appeal pointed out that a long-term marriage is a marriage that lasts 17 or more years. Where there is a long-term marriage, there is a rebuttable presumption in favor of awarding permanent support. The purpose of durational alimony is to provide a payee with support for a specific period of time, when there is a long term marriage and there is no need for ongoing support on a permanent basis.

In the alimony case at bar, the Final Judgment of Dissolution of Marriage failed to provide an explanation as to why permanent support was inappropriate. The Florida Court of Appeal ruled that it is an abuse of the trial court’s discretion not to award permanent alimony for this long-term marriage, absent a finding that the presumption favoring permanent periodic alimony was overcome by substantial competent evidence.

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A division of property and assets case was recently decided by the Florida Court of Appeal in a case captioned O’Neill v. O’Neill. In this case, the Husband appealed the equitable distribution award issued by the trial court. The lower court improperly included in the division of property and assets an automobile that was no longer in the Wife’s possession, failed to consider the loan balance in valuing the Husband’s car, and failed to properly value the parties’ investment accounts.

First, the Florida Court of Appeal ruled that it was improper to include in the equitable distribution award a vehicle that the Wife no longer possessed. Accordingly, the Court reversed and remanded the case back to the trial court to recalculate its equitable distribution award.

Second, the trial court improperly valued the Husband’s BMW. At trial, the Husband testified that his automobile had a negative equity of $6,000. The Florida Court of Appeal ruled that the lower court should have included the outstanding debt on the vehicle in calculating its value. Therefore, the appellate court reversed the trial court on this matter.

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A durational alimony case was recently decided by the Florida Court of Appeal in a case captioned Johnson v. Johnson. In this case, the husband and wife were married in 2006. They have two children. The husband worked in retail, and the wife was an auditor. The wife’s income substantially exceeded the Husband’s. In 2011, the husband stopped working in order to raise the children. In 2017, the husband returned to work. In the divorce proceeding, the Husband sought alimony from the wife. The lower court awarded durational alimony to the husband for a period of sixty months.

The wife appealed the trial court’s ruling. The Florida Court of Appeal reversed the trial court’s decision. The appellate court pointed out that the purpose of durational alimony is to provide funds for a set period of time. In awarding alimony, a trial judge is required to first make a determination as to the recipient’s need and the payor’s ability to pay. Once the court determines need and ability to pay, the trial court is to consider the following factors: (i) the parties’ standard of living during the course of the marriage; (ii) the length of the marriage; (iii) the parties’ ages and physical and emotional condition; (iv) each party’s financial resources; (v) the parties’ earning capacities; (vi) the parties’ contribution to the marriage; (vii) the responsibilities for parenting that each party will have after the divorce; (viii) the tax consequences of the award; (ix) income available to each of the parties from all sources; and (x) any other factor that the court deems just.

In awarding alimony, a trial court should follow a four-step procedure in which it decides: (a) a recipient’s need for support; (b) a payor’s ability to pay; (c) the appropriate type of alimony; and (d) the amount to be awarded. In the case at bar, the Florida Court of Appeal held that the trial court’s ruling was not grounded in competent, substantial evidence. Accordingly, the appellate court reversed the decision of the trial court.

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An alimony case involving imputation of income was recently decided by the Florida Court of Appeal in a case captioned Jorgensen v. Tagarelli. In this case the wife appealed a final judgment in which the lower court incorrectly imputed income. In the case at bar, the wife earned $118,000, in 2016. The parties separated, and the wife voluntarily left her job and began working as a self-employed insurance broker, where she earned approximately $38,000. The husband asked the trial court to impute income to the wife based upon his contention that the wife intentionally caused the reduction her income.

The Florida Court of Appeal began by pointing out that parties asserting that their spouses are voluntarily underemployed or unemployed bear the burden of proof. The appellate court then stated that trial courts are required to impute income if they find that spouses are voluntarily underemployed or unemployed. In imputing income, courts are to determine the parties’ probable earnings and employment potential based upon their occupational qualifications, recent work history, and the prevailing earnings level for similarly qualified employees in the community.

Regarding alimony, the Florida Court of Appeal found that there was substantial, competent evidence that the wife was voluntarily underemployed. However, the lower court erred in imputing income solely based on the wife’s past earnings. The Court of Appeal stated that the trial court should have imputed income based upon the wife’s current employability and the availability of jobs in her field. Trial courts should impute income based upon the salaries that are currently being paid for available jobs in the relevant geographical area for which employees are qualified. Therefore, the trial court’s final judgment was reversed, and the case was remanded to the lower court for rehearing in order to calculate the proper amount of alimony.

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A child custody and visitation case was recently decided by the Florida Court of Appeal in a case captioned Frye v. Cuomo. In this case, the parties were married for nine-years. They had two minor children at the time of the divorce. The mother filed a Petition for Dissolution of Marriage, citing the father’s history of alcohol abuse. As a condition to exercise timesharing, the trial court required the father to completely abstain from alcohol, and ordered the father to submit to blood alcohol testing at the beginning of every visitation and at the end of every visitation. The trial court also awarded the mother the authority to demand immediate and periodic testing of the father at any time, and required the Father to pay for the cost of the testing device.

In reaching its decision, the Florida Court of Appeal pointed out that restrictions on timesharing are usually disfavored, unless they are necessary to protect the children. Parents have a constitutionally protected right to have a meaningful relationship with their children. Custody and visitation should not be denied to either parent as long as they conduct themselves in a manner that does not adversely affect the children when they are in the presence of the children. Restrictions on custody and visitation must be in the best interests of the children before they will be upheld on appeal.

In this time-sharing case, because of the father’s proven history of substance abuse, the Florida Court of Appeal affirmed the lower court’s ruling and ordered the father to completely abstain from alcohol, and required him to submit to blood alcohol content testing before and after each visitation. The Court overruled the trial court’s requirement that the Father submit to periodic testing at the mother’s request. Finally, the Court apportioned the costs associated with the substance abuse testing device between the parties.

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Appropriate division of property and assets in Florida divorce proceedings was recently explained by the Florida Court of Appeal in a case captioned Jackson v. Blazer. In reaching its decision in this division of property and assets matter, the Court turned to the statutory definitions of marital and nonmarital property in the State of Florida. In Florida, marital property includes: (i) assets obtained and liabilities incurred during the course of the marriage; (ii) the increase in the value of nonmarital assets that result from either party’s efforts during the course of the marriage or from the use of marital funds; (iii) the reduction in the principal of any mortgages secured by real property that are nonmarital, and part of any passive appreciation in properties if the mortgages are reduced with marital funds; (iv) gifts that the parties give to each other during the marriage; (v) retirement benefits, annuities, insurance, deferred compensation, and pension and profit-sharing rights obtained during the course of the marriage; and (iv) property held by the husband and wife as tenants by the entireties is presumed to be a marital. This presumption is rebuttable.

Nonmarital property includes: (i) assets obtained and liabilities that are incurred prior to the marriage, and liabilities incurred and assets acquired in exchange for such assets and liabilities; (ii) assets obtained by noninterspousal gift and assets obtained in exchange for these assets; (iii) income derived from assets that are nonmarital, unless the income is used by the parties as a marital asset; (iv) assets and liabilities excluded by prenuptial or postnuptial agreement; and (v) liabilities incurred by unauthorized signature or forgery of a spouse’s signature.

In this case, the former husband purchased one of his cars before the marriage and one of his cars after the filing of the divorce. The former wife purchased her car and took out a loan on her car after the divorce was filed.  The Florida appellate court ruled that because the former husband purchased one of his cars prior to the marriage and one of his cars subsequent to the date on which the Petition for Dissolution of Marriage was filed, these assets were nonmarital. Additionally, because the former wife purchased her car and took out the loan on her car after the date of the filing of the Petition for Dissolution of Marriage, the Wife’s car was a nonmarital asset, and the loan on the Wife’s car was a nonmarital liability.

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A child relocation case was recently decided by the Florida Court of Appeal in a case captioned C.G. v. MM. In this case, the mother appealed the trial court’s decision concerning custody and visitation. The parents were unmarried and separated in 2010. They had one child. The parties did not enter into a formal parenting plan, however, they divided their timesharing equally. Eventually, the mother entered into a new relationship and had a second child with her boyfriend. The mother lived in Pinellas County. She decided that she was going to move to Hillsborough County at some time in the future.

At trial, the judge awarded the father majority timesharing and granted the parents shared parental responsibility. The trial court also ruled that when the mother moves to Hillsborough County, during the school year, the child was to spend more timesharing with the father. The mother received timesharing every other weekend, and the parties were to equally divide the holidays. The ruling was based upon the mother’s anticipated move to Hillsborough County.

The Florida Statues set forth the procedure to relocate a child. Unless the parties can agree to the relocation, the parent desiring to relocate must file a Supplemental Petition for Relocation. The parent desiring the relocation bears the burden of proof, by a preponderance of the evidence, that the relocation is in the child’s best interest. Once that burden of proof is met, the burden of proof shifts to the objecting parent to demonstrate that the relocation is not in the best interest of the child.

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