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January Case Law Summaries

Michelle Ralat Brinner
by Michelle Ralat Brinner

Note: the below cases were pulled directly from the DCA websites. Before relying upon any of the following case law, be sure to Shepardize and/or KeyCite.

Florida Supreme Court

In Re: Amendments to the Florida Family Law Rules of Procedure: The Court adopted proposed Rule 12.451 regarding taking testimony. This Rule mirrors Fla. R. Civ. P. 1.541, which authorizes a court to permit testimony at a hearing or trial by audio or video communication equipment by agreement of the parties or for good cause shown on written request of a party and reasonable notice to other parties. It became effective January 22, 2015.

First DCA

Burkett v. Kalaw, attorneys fees; motion for rehearing. Trial court failed to include sufficient findings to support the attorney award but First DCA was constrained to affirm because Appellant did not file a motion for rehearing to alert the trial court to the deficiencies in the findings. Appellant also failed to provide a transcript, and without a transcript the court did not know what evidence was heard beyond the documents filed in the record and it was unknown what issues were preserved for review.

Second DCA

J.A.I. & J.K.C. v. B.R., petition for writ of certiorari re: order requiring genetic testing. Appellant sought a declaratory judgment naming JMC as father. Appellee (BR) filed a petition to determine paternity. The trial court compelled JAI and JKC to undergo genetic testing. The Second DCA held that the trial court departed from the essential requirements of law by ordering genetic testing per Appellee’s request because Appellee was precluded from bringing a cause of action to challenge the paternity of the child. This is because JAI & JKC (Appellants) signed notarized voluntary acknowledgements of paternity, and, pursuant to Section 742.10, Appellee could not bring a cause of action. Because the Appellants were married after the child’s birth, and because they had signed the acknowledgement of paternity before Appellee filed his paternity action, he could not file a cause of action under Chapter 742.

Card v. Card, attorneys fee award. Appellant/Wife sought a temporary attorneys fee award. The parties entered into a joint stipulation in which Husband agreed to pay Wife’s temporary attorneys fees. The parties also agreed that Husband would pay Wife’s attorney an equal amount of fees that he paid to his attorney if the amount exceeded $20,000. They also reserved the right to argue whether the temporary fee award would be deducted from equitable distribution or part of a final fee award. By the final hearing, Husband had paid $43,000 of Wife’s attorneys’ fees and costs, including $19,000 for expert fees. In the Final Judgment, the trial court denied wife’s request for an additional $73,000 in fees, limiting the amount to that which husband paid his counsel through the final hearing. Husband’s attorney requested an evidentiary hearing on the reasonableness of Wife’s fees; however, Wife opposed this and claimed that the parties had stipulated that Wife would get the same amount of fees that Husband had paid, even though the stipulation only addressed temporary fees. The trial court agreed and no hearing was held on the reasonableness of Wife’s fees. A Final Judgment was entered holding that he amount paid satisfied Wife’s fee claim. On appeal, Wife argued the opposite position – that the trial court “arbitrarily” capped her attorneys’ fee award at the amount that Husband incurred. She claimed that the trial court erred because it did not make a specific factual finding of reasonableness, as well as on need and ability to pay. However, under the doctrine of “invited error,” Wife could not assert such a position on appeal because she opposed Husband’s counsel’s request for a hearing on reasonableness. Accordingly, the Second DCA held that the trial court did not err in entering the fee award on a matching basis without specific factual findings about Wife’s need for fees and Husband’s ability to pay.

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