Family Law Appellate Update for week ending 2/24/17

FelixBaseman
FelixBaseman

Pattison v. Pattison (First DCA, February 24, 2017)

In a post-judgment contempt case, the trial court held the former husband in willful contempt for failing to make his alimony payments.  As a sanction, the court: (1) sentence the former husband to eleven months and twenty-nine days incarceration; (2) ordered the former husband to make specified monthly payments going forward; and (3) suspended the sentence, stating that the sentence would automatically be reinstated if the former husband missed any future payments.  The former husband appealed and the District Court reversed.

The Court held that this arrangement violated the former husband’s due process in that it provided for an automatic future finding of contempt (and incarceration) if the former husband failed to comply.  This violated the well-settled rule that incarnation for civil contempt may be ordered only after a finding that the contemnor has the present ability to comply.  Thus, the trial court’s order deprived the former husband of the ability to defend a future contempt.

Landrum, Jr., v. Landrum (First DCA, February 24, 2017)

The husband owned a premarital parcel of land 50/50 with his sister.  During the marriage, the husband and wife gave the sister marital funds to pay for an unrelated debt.  In return, the sister deeded her half of the property to the husband.  Accordingly, at the time of the divorce the land was deeded 100% in the husband’s name.

The trial court found that the land was a marital asset and the husband appealed.  The First District reversed on this issue, explaining that one-half of the property remained the husband’s pre-marital asset, and that other half of the property was a joint marital asset.

Schafstall v. Schafstall (Third DCA, February 22, 2017)

In an initial divorce case, the trial court calculated the wife’s income for child support purposes by, among other things, including: (1) “in kind” income equal to the amount the husband was ordered to pay toward the home in which the wife was residing; (2) “in kind” income equal to what the wife’s mother was paying for the wife’s cell phone in exchange for the wife performing bookkeeping tasks for her mother’s business; and, (3) imputed income of about $500 based on what the wife could be earning if she worked part time.  The wife appealed and the District Court affirmed.

First, the District Court explained that the trial court was required to include the husband’s monthly mortgage payments as “in kind” income to the wife.  Because these payments reduced the wife’s living expenses, it was “mandatory” that the trial court include them pursuant to section 61.30(2)(a)(13).

Second, the trial court was correct to include the wife’s mother’s payments of the wife’s phone bill as income because the definition of income under section 61.046 includes “any form of payment to an individual . . . made by any person.”

Finally, the Court determined that it was appropriate to impute the wife with part-time income because: (1) she refused to work; (2) she admitted in a deposition that she could work part-time; and, (3) she conceded that she used to work twenty hours per week at $20 per hour even while suffering from the same “chronic fatigue syndrome” that she was presently claiming prevented her from working.  The Court noted that the trial court appropriately rejected the wife’s expert’s testimony that the wife could not work because the conclusion was based on the wife’s “self-reported condition, as opposed to an independent scientific and medical evaluation.”  From this, the trial court imputed the wife an income equal to 15 hours every other week at $15 per hour; a lower amount than she had been earning while employed.  Considering all of the circumstances, the District Court found this conclusion to be supported by the evidence.