Selected Family Law Appellate Update for week ending 4/21/17

FelixBaseman
FelixBaseman

C.J.I.-R. v. C.M. (Second DCA, April 19, 2017)

At trial the mother introduced the father’s financial affidavit which showed, among other things, his gross income and monthly tax liability.  The father testified that the affidavit was accurate and the mother did not cross examine nor put on contradictory evidence regarding the father’s income.  Despite this, the trial court calculated the father’s net income for child support purposes using a different monthly tax figure than stated in the affidavit.  The Second DCA reversed because the record evidence did not support the trial court’s deviation from the numbers set forth in the father’s financial affidavit.

Frezza v. Frezza (Second DCA, April 19, 2017)

The wife challenged, among other things, an award of attorney’s fees against her in the trial court’s divorce decree.  The order stated that the wife had caused unnecessary litigation that led to seven additional hours of attorney time at the reasonable rate of $300 per hour.  The wife argued that these findings were inadequate.

The wife first argued that the final judgment did not contain findings as to need and ability to pay.  The Second DCA noted this, but explained that although such findings are mandatory, they may be made in the judgment itself or at the hearing.  Because no transcript of the hearing existed, the DCA was required to presume that these findings had been made at the hearing.

Second, the wife argued that the final judgment did not contain the proper Rowe findings necessary to support an award of attorney’s fees.  The District Court agreed that such findings were mandatory and that these findings needed to appear in the judgment itself.  However, the Court concluded that this requirement was satisfied by the trial court’s explicit finding that the hours expended and the rate charged by the husband’s attorney were “reasonable.”

Accordingly, the Court affirmed the final order (but remanded with instructions to correct a scrivener’s error).

Wayne v. Einspar-Wayne (Fifth DCA, April 21, 2107)

The trial court erred by failing to include certain debts in its equitable distribution scheme.  The father cosigned with the parties’ son on his student loans, and the mother cosigned with the son on his vehicle loan.  Because there constituted financial obligations incurred during the marriage, the trial court was required to treat them as marital debts and distribute them accordingly.

Wilkerson v. Wilkerson (Fifth DCA, April 21, 2017)

The trial court ordered that the father pay child support in an initial divorce case based on an imputed income even though the father was incarcerated at the time.  The father appealed.

The Fifth DCA began its analysis by recognizing that the Supreme Court does not allow for an automatic reduction to an existing child support obligation when the payor becomes incarcerated.  The District Court explained that the Fourth District interprets this ruling to allow imputation of income to an incarcerated spouse.  Accordingly, the Fourth District has held that income “should be imputed” and child support established in an initial child support determination where the payor is incarcerated and that “arrearages [should] accumulate.”  Conversely, the First District has held that the law does not allow imputation of income to an incarcerated spouse in an initial child support determination.

The Fifth District ultimately agreed with the reasoning of the Fourth District and held that income could be imputed to an incarcerated spouse because incarceration is essentially a type of “voluntary” unemployment.