Family Law Appellate Update for week ending 9/30/16

FelixBaseman
FelixBaseman

Guerra v. Guerra (Second DCA, September 28, 2016)

Within its final judgment of divorce, the trial court stated that its attorney’s fees award was a form of support that is “not dischargeable in bankruptcy or by any other means.”  The Second DCA explained that it is improper for a divorce court to make any “prospective determinations purporting to decide whether support obligations will be dischargeable in bankruptcy.”  The Court remanded the final judgment with instructions to strike the offending language.

Koch v. Koch (First DCA, September 28, 2016)

The final judgment of divorce stated that the husband could not discuss “any religious matters during visitation with his children.”  The First District affirmed, and wrote to explain that although a person has a right to his or her own religious beliefs, a court may prevent a parent from taking specific “religiously motivated actions” including preventing that parent from exposing the child to his or her religious beliefs so long as there is “a clear, affirmative showing” that such exposure would be harmful.  The test was satisfied in this case where multiple professionals had testified that the husband’s “threats of damnation and demonization of the children’s mother,” among other things, were severe enough to qualify as child abuse.

Clemens v. Clemens (Fifth DCA, September 30, 2016)

In an initial divorce the trial court denied the wife’s request for permanent alimony.  The Fifth DCA reversed.

The parties’ marriage was long-term and the wife was unemployed.  The trial court found that the wife did not have a need for assistance based on her financial affidavit.  This was erroneous because, as the District Court explained, the wife’s financial affidavit was based on her present living expenses (including the fact that she was renting a single room from a friend), whereas alimony is used to provide for the needs and necessities of a spouse “as they were established during the marriage of the parties.”  Based on this, the wife had a need for assistance.

The District Court noted additionally that because the marriage was in excess of 17 years, the trial court was required to apply a presumption of permanent alimony.  Because the record showed that the husband failed to rebut this presumption, the District Court remanded with instruction to award permanent alimony in an amount that the trial court found to be appropriate.