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Alimony Award Upheld Despite Trial Court Not Having Included Required Alimony Findings In Judgment Because The Former Husband Failed to Provide A Trial Court Transcript

December 8, 2015 by  
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In Jericka v. Jericka, the Second District Court of Appeals for the State of Florida upheld an alimony award, despite the judgment entered not containing the required findings to support such an award because the former husband had not provided a transcript of the trial court proceedings for the appellate Court to review to determine if the error was harmless.

If you want to talk with one of our attorneys or lawyers to discuss your divorce, alimony, or an appeal please call us on (786)539-4935 to schedule a consultation.

The opinion states:

(KHOUZAM, Judge.) Donald Jericka (the Former Husband) appeals the final judgment of dissolution that awarded Linda Jericka (the Former Wife) permanent periodic alimony. Because the Former Husband failed to provide a transcript or statement of evidence, we affirm.

The parties were married in September 1977 and remained married for approximately thirty-six years. In March 2013, the Former Wife filed a petition for dissolution of marriage. The Former Husband was employed as an electrician and owned and managed his own business with several employees. Throughout the dissolution proceedings, the Former Husband filed five financial affidavits. Each subsequent affidavit showed diminishing income from his business. In the final affidavit, the Former Husband claimed $0 as his monthly income derived from his corporation, showing roughly a $3900 decrease from the initial affidavit.

Following an evidentiary hearing, the trial court entered a final judgment and ordered the Former Husband to pay the Former Wife $2000 a month for permanent periodic alimony. Based upon the Former Husband’s multiple income amendments to his financial affidavits, the trial court determined that the Former Husband was less credible than the Former Wife and that the Former Husband appeared to manage his business in a way to affect the alimony award. With these exceptions, the trial court did not make any other factual findings in the final judgment to support its ruling that the Former Husband pay permanent periodic alimony each month. The record contains neither a transcript nor a statement of evidence or proceedings as provided for by Florida Rule of Appellate Procedure 9.200(b)(4).

The Former Husband contends that the trial court erred in failing to make factual findings in support of its alimony award. Section 61.08, Florida Statutes (2012), requires a trial court to make specific factual determinations as to whether either party has an actual need for alimony and whether either party has the ability to pay alimony. See Crick v. Crick, 78 So. 3d 696, 698 (Fla. 2d DCA 2012). Failure to make these findings is reversible error. See Farley v. Farley, 800 So. 2d 710, 711 (Fla. 2d DCA 2001). We note that the order on appeal in this case is bereft of the requisite factual findings and, with the exception of the findings regarding the Former Husband’s financial affidavits, merely tracked the language found in section 61.08(2). See Melo v. Melo, 864 So. 2d 1268, 1269 (Fla. 3d DCA 2004). But we are compelled to affirm as the Former Husband has failed to provide a transcript or statement under rule 9.200(b)(4). This failure precludes this court from reviewing the factual or legal basis for the trial court’s decision. SeeKlette v. Klette, 785 So. 2d 562, 563 (Fla. 1st DCA 2001); see also Esaw v. Esaw, 965 So. 2d 1261, 1264 (Fla. 2d DCA 2007) (“The most salient impediment to meaningful review of the trial court’s decision is not the absence of findings, but the absence of a transcript.”). We recognize that in some cases the absence of a transcript does not preclude reversal where the error is apparent on the face of the judgment.See Hoirup v. Hoirup, 862 So. 2d 780, 782 (Fla. 2d DCA 2003). However, a harmless error review is required in alimony cases, and the lack of a transcript frustrates our ability to conduct such a review.Klette, 785 So. 2d at 563-64. That is, without the transcript or suitable substitute, we cannot evaluate the entire case as required for a harmless error analysis. Id. at 563. Accordingly, we affirm.

Affirmed. (ALTENBERND and SLEET, JJ., Concur.)

Appellate Court Reverses Modification Of Time-Sharing Where There Was No Competent Material Evidence Of A Substantial Change In Circumstances or Harm to Child

November 17, 2015 by  
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In George v. Lull, the Fourth District Court of Appeals for the State of Florida reversed a modification of time-sharing in favor of the father because there was no competent material evidence of record to show a substantial change in circumstances and to support the modification of time-sharing. 

The time-sharing schedule that the father sought to modify provided for the parties to have alternating week days and weekends and provisions were made to accommodate the parents work travel  schedules.  The father ultimately sought the child having alternating two week blocks of time with each parent.

The mother initiated the post judgment litigation by filing for relocation claiming that she had lost her employment and wanted to move to a location which had more employment opportunities for someone with her experience and skills.  In response, the father sought modification of the time-sharing schedule claiming that there had been a substantial change in circumstances based upon his now being able to work from home and because the child would greatly benefit from more time with the father. 

At the final hearing, the trial court found that there had been a substantial change in circumstances based on the change in the father’s work schedule, because the minor child was older and needed to spend more time with the father, and because the child was likely to be stressed by the present time-sharing arrangements. 

The Fourth District Court of Appeals disagreed with the trial court’s modification of time-sharing in favor of the father.  The appellate Court’s opinion makes no reference as to what happened in relation to the mother’s relocation request.  The Court reasoned that the father still had the same employment that he had at the time of the marital settlement agreement and that while he had testified that he would be able to work from home “if necessary” and be more flexible with his work travel dates and times his testimony did not rise to the level of competent evidence necessary to establish a substantial change in circumstances.  The Court also reasoned that there was no competent evidence sufficient to support a finding that the child was stressed by the present time-sharing arrangement.

While stating that while there may be instances when a change in work schedule would constitute a substantial change in circumstances the appellate Court determine that in this case the evidence did not support such a finding.

If you want a consultation with one of our attorneys or lawyers to discuss the modification of a time-sharing schedule and what kind of evidence needs to be presented to the court for a modification to be ordered by a trial court and/or upheld on appeal please call us on (786)539-4935.

 

 

Modification Of Child Support And Contempt For Non-payment Of Child Support

October 13, 2015 by  
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Where there has been a substantial change in circumstances because of a change in the parties incomes or because of a change in court ordered time-sharing a party can petition the court for a modification of child support.  Where a petition for modification of child support is filed a modification of child support can be retroactive to the date of filing.

Where a parent has failed to pay child support the other parent can seek to have the parent who should have paid found in contempt of court for non-payment of child support.

In the case of Rosenblum v. Rosenblum, the First District Court of Appeals ruled that since a petition for modification of child support was pending before the trial court and it predated the motion for contempt for non-payment of child support the trial court was required to hear the petition for modification first or at the same time as the motion for contempt and had committed reversible error in hearing the motion for contempt before the modification action.  The Court of Appeals reasoned that the amount that should have been paid was not certain until the petition for modification had been heard so it was error to find the parent who had not paid in contempt until the amount owed had been determined.

If you need to talk to a lawyer or attorney about a modification of child support or enforcement of a child support obligation please  contact us at (786)539-4935 to schedule a consultation.

A Trial Court May Not Adopt Or Ratify the Report And Recommendations Of A General Magistrate If The Magistrate Does Not File A Complete Record of the Evidence Before Them

August 18, 2015 by  
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Often times child support issues are referred by a circuit court judge to a hearing officer/general magistrate for determination.  Pursuant Florida Rule of Civil Procedure 1.490 a “magistrate” is responsible for ensuring that there is a full and complete record of a hearing before them.  

In the case of Garcia v. Garcia the Former Husband sought a downward modification of child support.  The evidence he presented included his own testimony and that of an accountant.  The Hearing Officer/General Magistrate ruled against the former husband stating that he had made a material and fraudulent omission in a financial affidavit and had not met his burden of showing a substantial change in circumstances to warrant a downward modification of child support.

The Former Husband took exceptions to the report and recommendations of the General Magistrate/Hearing Officer.  It was then discovered that the record from the hearings before the  General Magistrate/Hearing Officer was incomplete as it did not contain the testimony of the Former Husband or his accountant.  Regardless, the Circuit Court Judge denied the Exceptions to the Report and Recommendations of the Hearing Officer/General Magistrate and adopted the report.

The Third District Court of Appeals reversed the Circuit Court Judge’s denial of the exceptions and adoption of the Hearing Officer/General Magistrate’s report on the basis that the record was incomplete and remanded the case for further proceedings and a new hearing on the Former Husband’s Petition for a downward modification of child support.

It is important for a party seeking a modification of child support to present the right evidence to the court in support of the modification before a general magistrate/hearing officer.  It is also important to know the rules as to the exceptions and appeals process should the a trial court make the wrong decision based on the evidence and record before it.  

If you need to talk to a lawyer or attorney about a modification of child support, proceedings before a general magistrate or hearing officer, exceptions or an appeal you are welcome to contact our office to arrange a consultation on (786)539-4935

Appellate Court May Dismiss Appeal In Divorce Case Because The Appealing Party Had Not Complied With The Trial Court’s Orders

August 11, 2015 by  
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In a divorce case the appellant, Michel Whissell, appealed a non-final order finding him in contempt for the fourth time based upon failure to make court ordered support payments and comply with discovery.  Mr. Whissell claimed that there were deficiencies in the trial court’s order.  Mr. Whissell had been held in contempt and subject to incarceration pursuant to a writ of bodily attachment and then made statements to the trial court that he would comply with its orders but did still did not comply.  The Fourth District Court of Appeals ruled that it would dismiss the appeal unless  Mr. Whissell could demonstrate within 30 days that he was in substantial compliance with the orders of the trial court.

It is incumbent on a party to a divorce proceeding to try their best to comply with any trial court orders.  If not the party runs the risk of being found in contempt, subject to a writ of bodily attachment, incarceration and that an appeal of what they claims to be a deficient order will not even be considered by the appellate court whether the order was deficient or not.

In a divorce case it is important to get the advice you need from a lawyer who practices in the areas of divorce and family law in relation to issues like alimony, spousal support, child support, and discovery so mistakes are not made.  Failure to take the appropriate steps at the right time can significantly impact your case.  

If you need to talk to a lawyer or attorney about a divorce you are welcome to contact our office to arrange a consultation on (786)539-4935

Disclaimer: The Law Offices of Robert Hanreck, P.A. is based in Miami , Florida and serves clients throughout the State including Miami-Dade and Broward counties. We are licensed to practice law in the State of Florida. This website is intended for informational purposes only and is not meant to constitute legal advice, or solicit clients outside of the State of Florida.