Selected Family Law Appellate Update for week ending 9/22/17

FelixBaseman
FelixBaseman

Carson v. Carson (Fifth DCA)

The father sought to hold the mother in contempt for denying his timesharing.  The trial court granted the father’s motion and ordered make-up timesharing, but it also ordered that both parties complete an 8-week parenting and divorce court.  The father appealed the portion of the order requiring that he submit to this course.

The District Court reversed, noting first that neither party had pled for such relief.  It observed that section 61.21 allows the court to require both parties to take a parenting course if it modifies a final judgment, and that section 61.13(4)(c) allows the court to require any party found to be in violation of a timesharing order to take such a course, but that neither section could apply to the father under the facts of this situation.  Accordingly, the trial court lacked the authority to require the father to attend a parenting class.  (Incidentally, the District Court affirmed the requirement that the mother attend a parenting class.)

Ortiz v. Ortiz (Third DCA)

During the parties’ divorce, they entered into a partial settlement agreement resolving child support and providing that both parties would be responsible for their own attorney’s fees.  The trial court concluded that this did not preclude it from awarding the wife prejudgment attorney’s fees.  The Third District agreed, noting that longstanding precedent prevents parties from agreeing by contract to “waive temporary support [or] attorney’s fees before a final judgment is entered.”

The District Court reversed the trial court’s attorney’s fees award, however, because the judgment did not include factual findings as to the reasonableness of the fee.  In a partially dissenting opinion, Judge Rothenberg argued that because the appellant/husband had failed to include a transcript of the final hearing, the District Court should have presumed that the trial judge made the requisite findings on the record and that, as a result, the award should have been affirmed.

Adkins v. Sotolongo (Third DCA)

The Third DCA granted certiorari and struck a trial court’s order that conditioned the mother taking a deposition of the guardian ad litem (GAL) on the mother paying the GAL in advance for her time.  The only remaining issue in the parties’ underlying paternity case was the amount of fees to which the court-appointed GAL was entitled and how such fees should be apportioned between the parties.  The mother, who was deemed indigent, sought to depose the GAL who obtained a protective order from the trial court that prevented the mother from obtaining the deposition unless or until she pre-paid the GAL for her time.

The Third DCA granted the mother’s petition for certiorari and reversed the trial court’s order, noting its prior precedent that a trial court’s order preventing the deposition of a material witness was the type of “irreparable harm” necessary to invoke the District Court’s certiorari jurisdiction.  Because the mother was indigent, and because the trial court had not yet found that had the ability to pay the guardian’s fees, it’s discovery order effectively—and inappropriately—barred the mother from taking the GAL’s deposition.