Monday, May 20, 2019

Family law appeals, requested relief, shared parental responsibility, and proscuitto and nasturtium pizza

 It is well settled that courts cannot grant relief not requested in the pleadings, and to do so is both an abuse of discretion and reversible error. Worthington v. Worthington, 123 So. 3d 1189, 1191 (Fla. 2d DCA 2013) (reversing and remanding where court granted relief that was not requested); Abbott v. Abbott, 98 So. 3d 616, 617-18 (Fla. 2d DCA 2012) (reversing and remanding trial court’s award of shared parental responsibility where such relief was not pleaded or raised at the hearing). Nor should a court grant such relief without proper notice to the parties.  Sinton v. Sinton, 749 So. 2d 532, 533 (Fla. 2d DCA 1999). Doing so raises due process concerns. Sabine v. Sabine, 834 So. 2d 959, 960 (Fla. 2d DCA 2003); Cortina v. Lorie, 95 So. 3d 467, 469 (Fla. 5th DCA 2012); Randall v. Randall, 948 So. 2d 71, 74 (Fla. 3d DCA 2007).   If the relief granted is not requested in the pleadings, it can be reversible error.
Moreover, Florida Statutes 61.13(2)(c)(2) requires that a trial court must order shared parental responsibility “unless the court finds that shared parental responsibility would be detrimental to the child.” See also Smith v. Smith, 971 So. 2d 191, 195 (Fla. 1st DCA 2007). Numerous Florida courts of appeal agree that blanket awards that give one parent complete control over decisions does not give effect to the Statute. See, e.g., Markham v. Markham, 485 So. 2d 1299, 1300 (Fla. 5th DCA 1986) (“to lump all decision-making authority in one party for all matters, undermines the mandate of the law that decisions be "jointly made," unless there is a finding as required pursuant to section 61.13(2)(b)2”); Wheeler v. Wheeler, 501 So. 2d 729, 730 (Fla. 1st DCA 1987) (following Markham to reverse and remand blanket award of ultimate responsibility); Kuharcik v. Kuharcik, 629 So. 2d 224, 225 (Fla. 4th DCA 1993) (reversing order giving mother ultimate decision-making authority over all areas if parties can’t agree because it “undermines the intent of the child custody statute regarding shared parental responsibility”); Cranney v. Cranney, 206 So. 3d 162, 165 (Fla. 2d DCA 2016) (reversing award of ultimate decision-making authority to mother where court found both parents were capable of parenting the child even though father was less able to cooperate); McClure v. Beck, 212 So. 3d 396, 399 (Fla. 4th DCA 2017) (reversing open-ended award of ultimate decision-making authority to father over major decisions for trial court to specify which aspects over which he has authority). To make such an award of sole parental responsibility, there must be a finding that shared responsibility would be detrimental to the child. See id.; see also Maslow v. Edwards, 886 So. 2d 1027, 1029 (Fla. 5th DCA 2004) (holding court's failure to make a specific finding that shared parental responsibility would be detrimental to child before awarding sole parental responsibility to mother necessitated remand of paternity action); Aranda v. Padilla, 216 So. 3d 652 (Fla. 4th DCA 2017) (reversing and remanding where final judgment does not contain finding that shared parental responsibility would be detrimental to the child).
If an order contains no finding that shared parental responsibility is detrimental to the child, the contrary is presumed by statute, and that order may be reversible on appeal.  The appellate court in Ziruolo v. Ziruolo, 42 Fla. L. Weekly D986 (Fla. 1st DCA Apr. 28, 2017), reversed and remanded an order providing one parent as the ultimate decision maker that did not provide justification for doing so. 

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Tuesday, January 1, 2019

Asylum injunctions and lamb with garlic and rosemary roasted on a bed of leaks and heirloom tomatoes

"The U.S. Supreme Court on Friday refused to allow President Donald Trump to begin implementing a new policy that allows asylum claims only by immigrants entering the country through points of entry." "The case is Trump v. East Bay Sanctuary." More.

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Originally posted by Debra Cassens Weiss, Dec. 21, 2018, ABA Journal Weekly 

Monday, July 9, 2018

Cotton marketing agreements, consumer law, fair credit reporting act, bankruptcy and pork tenderloin medallions with a sage-mustard cream sauce over red bell pepper-porcini mushroom, rosemary garlic risotto

Weakley v. Eagle Logistics
Dockets: 17-14022, 17-14023
Opinion Date: June 29, 2018
Judge: Per Curiam

Areas of Law: Bankruptcy, Civil Procedure
In this consolidated appeal, plaintiff alleged that the district court abused its discretion by dismissing his two lawsuits based on the doctrine of judicial estoppel as a result of his failure to disclose them in his bankruptcy proceeding. Applying a two-part test to guide district courts in applying judicial estoppel, the court held that plaintiff took an inconsistent position under oath in a separate proceeding and the inconsistent positions were calculated to make a mockery of the judicial system. In this case, plaintiff not only failed to include the two lawsuits in his initial bankruptcy filings but he also failed to include them in any of the six separate amendments that he made to his schedules and filings during the bankruptcy proceeding. Plaintiff only disclosed the lawsuits after defendants had relied on plaintiff's failure to disclose as grounds for dismissal.

Wilcox v. corrections Corp of America
Docket: 17-11919
Opinion Date: June 25, 2018

Areas of Law: Civil rights, Employment discrimination, Sexual harassment
Employer could not be held directly liable for harassing acts of co-employee who was not plaintiff's supervisor where evidence established that company took prompt remedial action against the harassing employee -- District court did not err in granting judgment as matter of law for employer notwithstanding jury's favorable verdict and award of damages to plaintiff

Felts v. Wells Fargo Bank, N.A.
Docket: 16-16314
Opinion Date: June 27, 2018
Judges: TJOFLAT and WILSON, Circuit Judges, and ROBRENO

Areas of Law: Consumer law, Fair Credit Reporting Act
Mortgagor brought action against mortgage servicer, as furnisher of information to credit reporting agencies regarding her compliance with her payment obligations under her mortgage loan, claiming that furnisher failed to conduct a reasonable investigation into the accuracy of its credit reporting of her mortgage loan in violation of FCRA -- District court did not err in finding that mortgagor's FCRA claim failed as matter of law because the undisputed material facts demonstrated that furnisher's reporting of mortgage account as past due and delinquent during a forbearance plan was neither inaccurate nor materially misleading, and thus mortgagor failed to make the threshold showing that a reasonable investigation could have uncovered an inaccuracy -- Information reported regarding mortgagor's compliance with the terms of Note was not inaccurate where furnisher reported that scheduled monthly payment amount was full amount due under the Note and that mortgagor's payments were “past due” and “delinquent” for months that she did not make full payments required under the Note -- Apparent compliance with terms of forbearance plan mortgagor entered into with furnisher has no bearing on accuracy of information reported to CRAs regarding compliance with terms of original Note, unless plan legally modified terms of Note, and mortgagor has not identified any facts in record establishing that the forbearance plan legally modified the Note -- Consumer Data Industry Association's guidelines regarding credit reporting do not demonstrate that information reported was inaccurate -- Where mortgagor owed payments under Note, it was not misleading for furnisher to report that payments were not being made under Note as agreed, particularly in light of furnisher's additional statement that she was paying under a partial payment agreement -- Omission of lower payment amount mortgagor agreed to pay under forbearance plan did not render credit reporting misleading.

Autauga Quality Cotton Ass’n v. Crosby
Docket: 17-12092
Opinion Date: June 25, 2018

Areas of Law: Contracts, Cotton marketing agreement, Breach by grower, Damages
Liquidated damages clause in agreement between grower and cooperative that pooled and marketed grower's cotton amounted to an impermissible penalty under Alabama law and is unenforceable -- Provision did not satisfy second or third prong of three-part test set forth by Alabama court in Camelot Music, Inc. v. Marx Realty & Imp. Co. where evidence indicated that intent was to provide for penalty, not damages, and the agreement's liquidated-damages formula did not remotely prescribe a “reasonable pre-breach [estimate] of the probable loss” -- Cooperative organized under article 4 of Alabama's Agricultural Code not entitled to avail itself of Article 3 liquidated-damages authorization.

Everglades College, Inc. v. Nat’l Labor Relations Board
Docket: 16-10341
Opinion Date: June 26, 2018
Judges: MARTIN and HULL, Circuit Judges, and RESTANI

Areas of Law: Labor relations, Unfair labor practices
Employer did not violate National Labor Relations Act by maintaining and enforcing employment agreement that required employees to individually arbitrate employment-related claims and that waived employees' rights to file class or collective action lawsuits against employer -- Whether employer violated NLRA by maintaining and enforcing employment agreement that caused employees to reasonably believe that they were prohibited from filing unfair labor charges with National Labor Relations Board must be re-evaluated in light of NLRB's recent refashioning of its test for determining whether an employer's allegedly facially neutral policy would reasonably lead an employee to believe that she could not file an unfair labor charge with NLRB -- Unlawful discharge -- Whether employer unlawfully discharged employee for refusing to sign an unlawful employment agreement which could reasonably be construed as prohibiting the filing of unfair labor charges with NLRB must also be reconsidered in light of NLRB's new standard, which applies retroactively.

Llorca v. Sheriff, Collier county, Florida
Docket: 17-10616; 17-11377
Opinion Date: June 27, 2018

Areas of Law: Labor relations, Fair Labor Standards Act, Overtime
Sheriff deputies are not entitled to compensation under FLSA or Florida Minimum Wage Act for time spent donning and doffing police gear at home or time spent driving to and from work in marked patrol vehicles -- Even though donning and doffing protective gear arguably may be “indispensable,” it is not “integral” to deputies' principal activities of law enforcement duties and therefore such time is not compensable -- Donning and doffing is an entirely separate activity from deputies' principal law enforcement duties, and therefore donning and doffing is a preliminary and postliminary activity as contemplated by Portal-to-Portal Act -- Time deputies spent commuting in marked patrol vehicle is excluded from compensable work time by plain language of Portal-to-Portal Act -- Monitoring roads for traffic violations and other incidents during the deputies' commutes are incidental to use of marked patrol vehicle and not part of employee's principal activities -- Performance of general traffic law enforcement during deputies' commutes is not integral and indispensable to deputies' performance of their principal activities

Rodriguez Asalde v. First Class Parking Systems LLC
Docket: 16-16814
Opinion Date: June 29, 2018
Judge: Jordan

Areas of Law: Labor & Employment Law
Plaintiffs, who are valets, filed a putative class action against FCPS, alleging claims under the minimum-wage and overtime provisions of the Fair Labor Standards Act (FLSA). The Eleventh Circuit held that, although the district court correctly ruled that the vehicles parked by plaintiffs were "goods" subject to the ultimate consumer exception, and not "materials" under the FLSA, FCPS was not entitled to summary judgment on the FLSA claims. Viewing the evidence in the light most favorable to plaintiffs, a jury could reasonably find that the uniforms they had to wear as valets for FCPS constituted "materials" under 29 U.S.C. 203(s)(1)(A). Furthermore, the labels on the uniforms, which reflect foreign manufacture, similarly created a jury issue as to whether the uniforms moved in international or interstate commerce under section 203(s)(1)(A)(ii). Accordingly, the court affirmed in part, reversed in part, and remanded.

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Saturday, March 31, 2018

Bill toughening penalties for harm and threats to family lawyers heads to Wisconsin governor

"A bill that would make it a felony to harm or threaten lawyers for their work in family law cases is heading to Wisconsin Gov. Scott Walker.

The Wisconsin Senate approved the bill known as Sara’s Law on Tuesday evening, WSAW reports. The bill is named for lawyer Sara Quirt Sann, who was one of four people killed in a shooting spree by a divorce litigant who was later shot and killed by police. Sann represented the wife of shooter Nengmy Vang.
The bill makes it a felony to harm or threaten a lawyer, corporation counsel or guardian ad litem for work on a family law case,. . ."  More.   
Originally from the ABAJournal News by Debra Cassens Weiss

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