Selected Family Law Appellate Update for week ending 10/13/17

FelixBaseman
FelixBaseman

Broga v. Broga (First DCA)

The trial court imputed the husband an income of $80,000 per year on the assumption that he could secure a job as a corporate pilot.  The court based the husband’s child support and an award of attorney’s fees on this amount.  The District Court reversed.

The husband was currently working as a disability examiner earning $35,000.  He had not worked as a pilot since 2013, and the evidence showed that he could not work as a commercial pilot without undergoing and expenses re-certification process.  The husband testified further that he had tried without success to obtain a position as a corporate pilot.  Moreover, the wife’s expert testified that he was not aware of any corporate pilot positions in the area for which the husband could qualify and which would allow him to exercise his 50/50 timesharing with the parties’ children.  Because of this, the District Court held that the trial court improperly imputed the husband with income and reversed the child support and attorney’s fees award.

Even though it was reversing the attorney’s fees award for the reasons stated above, the District Court noted that the trial court should be cautious before awarding fees in the future based on the husband’s “inappropriate litigiousness.”  The Court warned that such awards should be “rare” and require that the trial court include highly specific findings of fact.  It added that the trial court must make a finding that the husband has the ability to pay any such award.

Dukes v. Griffin (First DCA)

In a post-judgment modification action, the trial court changed the schedule so that the mother, who previously had majority timesharing, would now have only every-other weekend with the children.  On appeal, the mother argued that the trial court was required to set out the steps that she could take to regain majority custody.

The First District Court disagreed, observing that nothing in the statutes required that a final judgment of modification provide the steps necessary for one parent to return to more satisfactory timesharing.  In so doing, the Court noted that other districts have required that trial courts include such steps in modification judgments (including the 2d DCA and the 4th DCA).  Because it could find no statutory basis for such a requirement, however, the First District affirmed the trial court’s order and certified conflict.

Betts v. Betts (Second DCA)

During the marriage, the husband had paid $350 per month toward the mortgage on the wife’s non-marital property.  The trial court awarded the husband a dollar-for-dollar credit on these payments in equitable distribution.  The Second District reversed, holding that the credit could be based only on the amount of funds paid that actually “reduced the indebtedness on the property.”