Monday, December 2, 2019

Fiduciary duties, contempt, marital liabilities, and coffee-garlic marinated bison with grilled fennel and rosemary

Contracts -- Real property -- Escrow agent -- Fiduciary duty -- Action against defendant escrow agent alleging that defendant breached fiduciary duty owed to plaintiff by distributing escrow funds to third-party developer for purposes not authorized in purchase agreement between developer and plaintiff, but which were authorized in escrow agreement between developer and defendant -- No error in granting summary judgment in favor of defendant -- There was no genuine issue of material fact about whether plaintiff's counsel negotiated, or had authority to negotiate, the escrow agreement -- Counsel's authority to negotiate terms of escrow agreement was immaterial to plaintiff's claims because defendant owed no duty to plaintiff who was not a party to the escrow agreement -- No genuine issue of material fact existed as to whether defendant had authority to disburse the escrow funds -- Fact that escrow agreement had not been fully executed when funds were transferred did not alter defendant's obligations as escrow agent because defendant's execution of the escrow agreement was not a condition precedent to implementing the terms of the agreement. CARTER DEVELOPMENT OF MASSACHUSETTS, LLC, Appellant, v. G. ALAN HOWARD and MILAM HOWARD NICANDRI DEES & GILLAM, P.A., Appellees. 1st District.

Dissolution of marriage -- Contempt -- Trial court erred by holding former husband in contempt for failure to pay alimony and child support pursuant to a marital settlement agreement entered into by parties in a dissolution action five years earlier which had been dismissed without the court having approved or adopted the agreement -- Trial court's conclusion that doctrine of laches has been abolished in Florida is legally incorrect -- Terms of settlement agreement may not be enforced nunc pro tunc five years later via contempt, as opposed to enforcement in an ordinary civil money judgment for the months of non-compliance prior to filing of current dissolution action. VINCENT J. THILLOY, Appellant, v. ANN M. CICCONE-CAPRI, Appellee. 3rd District.

Dissolution of marriage -- Equitable distribution -- Marital liabilities -- Loans -- Trial court erred in ruling that former wife had no obligations as to a loan given to the parties by former husband's mother during the marriage -- Trial court must treat the debt as a marital liability and order distribution of it accordingly where trial court made no finding of misconduct, failed to consider the factors listed in section 61.075(1), and failed to articulate a sufficient justification to allocate the loan solely to former husband -- On remand, trial court need not make any determinations as to the true value of the promissory note securing the loan where issue was not previously put before the trial court. DENNIS K. BURNS, Former Husband, Appellant, v. CYNTHIA S. COLE, Former Wife, Appellee. 1st District.

Dissolution of marriage -- Judgment -- Trial court, under facts of case, did not abuse discretion in adopting wife's proposed final judgment where both parties were represented by counsel, husband was given a copy of wife's proposed final judgment, trial court signed wife's proposed final judgment two-and-a-half months after receiving competing orders, husband raised no objections to proposed judgment, and trial court's hand-written notations on judgment before signing it implicate court's independent evaluation of submitted findings -- Record supports conclusion that trial court exercised independent decision-making where court actively participated in final hearing -- Moreover, husband, who failed to raise an objection to wife's proposed final judgment on rehearing, cannot for first time on appeal raise an objection to proposed final judgment based upon court's “virtually verbatim” adoption of proposed judgment -- Child custody -- Trial court abused discretion in awarding sole parental responsibility to wife where wife did not request sole parental responsibility and there is no “logical or reasonable justification” for award that would support conclusion that shared parental responsibility was detrimental to minor children -- On remand, trial court is instructed to amend final judgment to award shared parental responsibility, and to remove all findings and inflammatory remarks related to issue of parental responsibility -- Domestic violence injunction -- To extent final judgment grants wife what amounts to a de facto domestic violence injunction against husband, trial court acted without proper statutory authority where record is devoid of any facts showing wife had standing to file petition for domestic violence or showing husband was provided notice and hearing before entry of injunction -- Life insurance -- Trial court erred in requiring husband, who is receiving child support, to name wife as beneficiary to his existing life insurance, absent appropriate circumstances requiring him to maintain such policy -- Husband's advanced age of seventy with two minor children does not qualify as a special or appropriate circumstance. BENJAMIN A. MUSGRAVE, Appellant, v. LYNN M. MUSGRAVE, Appellee. 2nd District.

Dissolution of marriage -- Property settlement agreement -- Enforcement -- Jurisdiction -- Scope of family court's continuing jurisdiction -- Family court judge erred in awarding money damages for husband's breach of parties' settlement agreement where the agreement did not specify the damages sought by former wife and awarded by the court -- Award of damages for husband's delayed delivery of stock and failure to deliver accurate tax information, together with injunction intended to secure the payment of those damages, reversed. TODD KOZEL, Appellant, v. ASHLEY D. KOZEL, Appellee. 2nd District.

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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