Family Law Appellate Update for week ending 9/9/16

FelixBaseman
FelixBaseman

A.D.A. and M.J.L. v. D.M.F. (Fourth DCA, September 7, 2016)

This is a convoluted paternity case involving a wife, husband and boyfriend.  Before the wife and husband married, the wife was impregnated by the boyfriend and gave birth to a daughter.  Later, the boyfriend filed a petition to establish his paternity as well as a claim of paternity through the Putative Father Registry.  He thereafter dismissed his paternity petition.  Soon after, the husband and wife executed an Acknowledgment of Paternity stating that the husband was the child’s father.  The husband and wife then married.

Subsequently, the husband filed for divorce and asked for a 50/50 timesharing schedule with the child.  The wife and the boyfriend rekindled their relationship, and the boyfriend refiled his paternity petition.

The judge in the paternity case granted the boyfriend’s motion for paternity testing (which showed that the boyfriend was the child’s father).  The husband moved to set aside the test results arguing that he was the child’s legal father and that he had not been provided with notice of the motion for testing.  The judge granted the motion and consolidate the paternity and divorce cases.

The trial judge then endeavored to hold a Privette hearing to determine whether the paternity test would be in the child’s best interests.  A guardian ad litem was appointed for the child and recommended that the test go forward.  Nevertheless, the judge denied the motion for testing, concluding that it was not in the child’s best interests.

The District Court began its analysis by noting that the signing of an Acknowledgement of Paternity creates a presumption of paternity.  The Court also noted that when a mother marries the reputed father of her child (essentially defined as the person who believes he is the child’s father), the child is treated as if he or she had been born during the marriage.  In that case, a Privette hearing is necessary before another man can attempt to prove that he is the child’s father.

However, if the Acknowledgement was fraudulent, the presumption of paternity would not apply and, even if there was a subsequent marriage, the child could not be deemed to have been born of that marriage.  If that was true in the instant case, the husband would not be the legal father and Privette would not apply.

Thus, the case would be remanded to determine whether the husband had committed fraud when executing the Acknowledgement of Paternity.  If the husband had a good faith belief that he was the child’s biological father, then the boyfriend would correctly be precluded from challenging paternity.  If the husband had fraudulently signed the Acknowledgment, then the biological father’s rights (i.e., the boyfriend’s rights) cannot properly be eliminated.

Trainor v. Trainor (Fourth DCA, September 7, 2010)

The trial court awarded temporary alimony and attorney’s fees to the wife and the husband appealed.  The District Court affirmed the temporary alimony award, stressing that temporary relief awards are “among the areas where trial judges have the very broadest discretion” and adding that this discretion is not abused unless the trial judge’s decision is “arbitrary, fanciful, or unreasonable.”

Nevertheless, the Court reversed the temporary attorney’s fees award because the trial court failed to make an explicit finding as to the reasonableness of the time expended by and the hourly rates of the wife’s attorney.

Brezault v. Brezault (Fourth DCA, September 7, 2010)

In a final judgment of dissolution, the trial court awarded the husband durational and bridge-the-gap alimony; the wife appealed the amount, and the husband appealed the trial court’s decision to not award him permanent alimony.

The District Court reversed as to the amount of alimony.  The husband argued that he had a need for assistance of about $2,700 per month.  The trial court awarded the husband $2,000 per month in durational alimony, and added an award of $2,000 per month for two years as bridge-the-gap alimony.  The District Court reversed because this combined alimony amount exceeded the husband’s total need.  The Court also reversed because the final judgment failed to make findings of fact relating to each of the alimony factors set forth in the statute.

The District Court also reversed as to the nature of the alimony award.  The parties had been married for 22 years, making the marriage “long-term” and giving rise to a presumption of permanent alimony.  In such cases, a trial judge must make an explicit finding as to why permanent alimony is “not appropriate” before it can refuse to award same.  The trial judge in the instant case failed to make this finding; therefore, the case needed to be remanded for further findings.

Liguori, Jr. v. Liguori (Fourth DCA, September 7, 2010)

The husband challenged multiple aspects of the final judgment of divorce, including the trial judge’s child support award.  Initially, the trial judge awarded retroactive child support back to the date of filing despite the fact that the husband did not leave the marital residence until much later.  The District Court reversed because retroactive child support can be awarded only “retroactive to the date when the parents did not reside together in the same household with the child.”

The husband also complained that the trial judge failed to allocate responsibility for the children’s uncovered medical costs and failed to provide for the child’s health insurance.  The District Court agreed, stating that a final judgment of child support must detail how uncovered medical expenses will be paid and must order one party to carry health insurance for the child if such insurance is reasonably available.