Family Law Appellate Update for week ending 12/09/16

FelixBaseman
FelixBaseman

Nation v. Boling (First DCA, December 8, 2016)

The father was held in contempt for failing to pay child support and appealed.  The First DCA reversed after concluding that the trial court’s finding that he had the ability to pay was not supported by substantial, competent evidence.

At hearing, the mother established that the father receives $1,000 per month from an annuity, plus “spike payments” at regular intervals.  The last spike payment that the father received was for $125,000 in February 2012 and the next payment would be $225,000 in 2017.  The mother also showed that when the father had been previously held in contempt, his family had paid the purge.  The father testified that he had not paid child support because he did not have any money; that he had a $1,000 per month deficit and that he owned only a 2004 vehicle and a mobile home.  The hearing officer found that the father willfully failed to pay nearly $10,000 in child support and recommended that he be incarcerated until he paid back the entire arrearage amount.

The District Court reversed, concluding that there was no competent evidence that the father had the ability to pay child support but that he had willfully refused to do so.  The Court noted that the hearing officer improperly presumed that the father would have money left over from the February 2012 annuity payment to cover his support obligation without any evidence supporting this conclusion.  Additionally, the Court noted that the hearing officer erred by finding that the father could sell his vehicle and mobile home to pay his obligations, explaining that as a general rule a party should not be required to sell capital assets to pay alimony (especially where the assets are of minimal value).  Finally, the Court noted that the hearing officer’s belief that the father’s family would provide money for the purge as they had done in the past was an improper basis for finding that the father had an ability to pay.

Bahl v. Bahl (Second DCA, December 9, 2016)

In an initial divorce case, the guardian ad litem filed an interim report which prompted the mother to file an emergency motion to change temporary timesharing in accordance with certain findings in the report.  The trial court granted the emergency motion without a hearing and suspended the father’s timesharing and contact with the minor child.  The father appealed and the District Court reversed.

The Court observed that in the absence of an emergency, a child custody order may not be entered without providing both parents notice and an opportunity to be heard.  Such emergencies exist where a child is “threatened with physical harm or is about to be improperly removed from the state.”  Here, the allegations were only that the father was alienating the child from the mother, which allegations were insufficient to evoke the court’s emergency jurisdiction.

The District Court also noted that the mother’s emergency motion was based on unsworn allegations and the contents of a guardian ad litem’s report, both of which were insufficient to support an award of emergency relief without giving the father an opportunity to be heard.  Further, the Court noted that the emergency order granted relief that the mother had not requested, including the fact that the mother had not asked for an ex-parte order and the fact that the guardian had not recommended that the trial court suspend all communication with the father (on the contrary, the guardian recommended daily supervised communication between the father and child).

For each of these reasons, the District Court reversed the order.  To avoid immediate harm to the child, however, the Court allowed the timesharing provisions of the order to remain in place temporarily pending an evidentiary hearing.

Earney v. Quiloan (Fifth DCA, December 9, 2016)

A final divorce decree affecting child custody was properly entered by a Texas court in 2015.  Thereafter, the mother, a resident of Florida, filed an emergency motion to suspend the father’s timesharing in Putnam County, Florida.  The Florida court granted the emergency motion and the father appealed.

The Fifth DCA observed that although Texas continued to have exclusive jurisdiction to modify the original custody decree, Florida could exercise emergency jurisdiction under section 61.517, Florida Statutes.  However, the District Court noted that the statute requires that the Florida court immediately communicate with the original court in these circumstances.  Because the Florida trial court had not communicated with the Texas court, the District Court affirmed the emergency order but remanded the case with instructions that the two courts communicate immediately “to resolve any conflicts that exist between the Texas divorce decree and the Florida order suspending timesharing.”