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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.)

There Needs To Be A Substantial Change In Circumstances For A Petition For Modification Of Time-Sharing To Be Granted

August 28, 2015 by  
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In Blevins v. Blevins, the 5th District Court of Appeals held that because substantial competent evidence of substantial change in circumstances was not presented the trial court abused its discretion by granting former wife’s modification petition.

The Former Wife had sought modification based on the distance between her residence and the child’s school.   The Court ruled that the distance between the Former Wife’s residence and a child’s school was not a basis for modification of time-sharing where the location of parties’ residences was known at the time of the final judgment, when the trial court selected the former husband’s residence as a child’s legal address and address for school designation purposes.  Absent a substantial change in circumstances the trial court should not have granted a petition for modification of time-sharing.

If you want to modify time-sharing after a judgement has been entered it is important to present the right evidence to the court for it to rule in your favor and for its decision to be upheld based upon the best interests of the child and there having been a substantial change in circumstances.

If you need to talk to a lawyer or attorney about a modification of time-sharing please 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

What Does Florida Require Of Parents In A Divorce In Relation to Child Parenting Conduct?

August 4, 2015 by  
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In a divorce situation, the parents are meant to conduct themselves and their activities in a way that will promote the welfare and best interests of the child(ren). It is the public policy of Florida that each child has frequent and continuing contact with both parents after the parents separate or a marriage is dissolved. It is also the public policy of Florida to encourage parents to share the rights and responsibilities, and joys, of child-rearing. There is no presumption for or against a parent based on parent’s gender.

Each parent has an affirmative duty to promote a positive relationship between the child(ren) and the other parent. Both parents must attempt to ensure that the children have unhampered contact and free access with both parents.

Neither parent may do anything to hamper the natural development of the child(ren)’s love and respect for the other parent. A parent should not disparage the other parent or discuss the divorce in a child presence. Each parent must make efforts to encourage and facilitate communication between the other parent and the child(ren). Neither parent should do anything that would estrange the children from the other parent or that would damage a child’s opinion of either parent.  A parent in the process of a separation or divorce should try as hard as possible to overcome any of their own emotions as best they can to protect the emotional and psychological well being of the child(ren).

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.