Welcome to the Florida Family Lawyer Blog

The posts in this blog focus on Florida family law issues including divorce , child custody/time-sharing , child support , mediation , domestic violence , parenting coordination , parenting rights of same-sex couples , and other family law topics. The posts discuss these topics under Florida law, and also focus on the family law local rules in Broward, Dade and Palm Beach Counties.

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Articles Posted in Appeals

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Continued from Part I. The Court ruled in T.M.H. v. D.M.T, that Florida’s statute prohibiting gay or lesbian prospective parents from adopting a child, does not operate to take away the maternal rights of a biological or birth mother. That seems like a common sense ruling, like the ruling that TMH was clearly not a “donor”, but both were major issues in the case. There was a dissenting Judge in the case who wrote an opinion stating that under Florida law, TMH — the biological mother, had lost her rights as a parent.

Another important issue in the case was whether TMH had waived her rights as a parent, by signing a waiver form at the reproductive clinic — the form basically provided that TMH waived any rights she might have as a parent regarding any child resulting from her donation of her ova. The court ruled that this waiver form did not have the effect of waiving TMH’s maternal rights, because it was clear that that was not the intention or agreement of the parties, and that TMH was not a donor nor simply donating her eggs. The court relied on and cited cases from other states that had reached the same conclusions when dealing with similar waiver forms. So, this is Florida law regarding the waiver form, at least in this Circuit currently. It is always possible that a different decision will be reached by this court or another parallel or higher court in the future. There is also always a chance Florida’s legislature will attempt to craft a statute that will make these form waivers in a reproductive clinic binding and effective against parents like TMH, in a way that perhaps would successively survive a court challenge to the constitutionality of the statute.

The point here, is that there is reason to be cautious about signing these kinds of waivers, and to read carefully other kinds of forms that are presented to you in a doctor’s office, hospital or other location. Many if not most times, when you sign a document, it is binding. There are some forms a doctor’s office or hospital might require you to sign as a condition to providing treatment, but there are some forms you may have the option of not signing, or where you can negotiate regarding what’s included or added to the form. I fully believe that the staff at medical offices and hospitals have the patients’ welfare and best interests as their first priority, and that is true of the institutions as well, but at the same time I’m also fairly sure, at least from my own experiences with medical situations with family, that some of the forms (written by attorneys) are designed with the institution’s best interests in mind. In a situation like TMH and DMT’s, where the doctor is helping the couple conceive a child, perhaps the office would go along with the prospective parents writing on the form that the biological parent is not waiving her rights and that the couple intend to raise the child together, or simply not require the waiver.

The “concurring” opinion in the TMH case raised an additional interesting and important issue, based on the decision in Florida Department of Children & Families v. Adoption of X.X.G., 45 So. 3d 79 (Fla. 3d DCA 2010), which ruled that Florida’s statute prohibiting adoption by a gay or lesbian prospective parent violates the equal protection clause of Florida’s Constitution, and is unconstitutional. Judge Monaco in his concurring opinion in TMH observed that if TMH and DMT were not a same-sex couple, the court would probably have viewed them as being able to fall under a specific provision in Florida Statutes 742.14, which allows a “commissioning couple” to donate sperm/ova without waving parental rights. The statute, however, defining the term identifies a “commissioning couple” as an intended mother and father. If it is unconstitutional to prohibit a gay or lesbian prospective parent from adopting a child, it seems it would violate the notion of equal protection as well to not allow a same-sex couple to be treated as a commissioning couple (a quick review of the case law interpreting F.S. 742.14 indicates that heterosexual unmarried partners can be treated as a commissioning couple). The ruling in Adoption of X.X.G. was based on the Court’s determining that there was no rational basis or reason for prohibiting gay or lesbian prospective parents from adopting. The same reasoning should apply in determining whether there is a rational basis for prohibiting a same sex couple from seeking to have a child through the reproductive options available to other couples.

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The Fifth District Court of Appeals in Florida – the appeals court covering the north/central part of the State, recently decided T.M.H. v. D.M.T, 79 So. 3d 787 (Fla. 5th D.C.A., December 23, 2011), a case dealing with the parental rights of lesbian partners. In this case the partners decided to have a child together – one partner, TMH’s egg was fertilized and implanted by in-vitro fertilization in DMT. The child was born in 2004; the parties lived together for approximately 2 ½ years and raised their child together, and separated in 2006, but continued co-parenting for another 1 ½ years. The parents’ relationship deteriorated, and DMT moved out of the country and cut off TMH’s contact with the child. The Court described the case as a case of “first impression”, i.e. an issue that had not been decided yet by Florida’s appellate courts, and ruled that both parents – both the birth mother and biological mother, had constitutionally protected rights as parents.

The key issue in the TMH case involved the rights of the “biological” mother — TMH, who was not the birth mother, because the embryo was implanted in DMT who gave birth to the child. DMT, through her attorney, argued that a Florida Statute (F.S. 742.14) that provides for an egg or sperm donor losing or waiving their maternal or paternal rights, applied to TMH and meant that as an egg “donor” she had waived and lost her rights as a parent. The Court decided that TMH was not a “donor” — that it was not a situation where TMH had given away her ova so that another mother or couple could have and raise a child. The Court found that the intention of TMH and DMT, their agreement, was to have and raise a child together, and that that is what they had done for many years before they had a falling out.

The Court went on to make several significant rulings in the case, as part of its decision. First, that the right to procreate and parent your child is a fundamental, constitutionally protected right. The court applied this right to decide the case, thus holding that lesbian parents’ rights are constitutionally protected, and specifically stated that applying F.S. 742.14 to deny TMH’s maternal rights would violate her constitutional rights, including her right to equal protection under the law. There are some technical constitutional law issues that make up the constitutional law ruling, but this the bottom line of the Court’s decision.

One thing to note, and the reason I mention above the District the case came from, is that a decision of a District Court of Appeals is only “binding” on the circuit courts in the counties covered by that District. The circuit courts are the “trial” courts that hear your family law case. When you go before a family court judge for a hearing or trial – the judge you’ll see is a Circuit Court Judge. The website for the Florida Courts list the counties covered by each District Court of Appeal. So for example, in a case in the future, the Fourth District Court of Appeal covering Broward and Palm Beach Counties could decide the issue addressed in TMH v DMT differently than the Fifth DCA did. The Fifth DCA in the TMC decision, “certified” the issue in the case, i.e. sent the case up to the Florida Supreme Court, as a matter of great public importance. The parties are currently filing briefs before the Florida Supreme Court. This post will be continued in Part II.

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The dissent in Hill v. Hill, 36 Fla. L. Weekly D 475 (Fla. 3rd DCA, March, 2, 2011) saw the case much differently than the majority. The dissenting Judge saw the majority’s opinion as overturning the trial court’s order from 1990, even though the time for appealing the decision had expired long ago, and the Husband had never appealed. The trial judge’s order in 1990 provided that the trial court was retaining jurisdiction to address alimony at a later date, in contemplation of the Husband’s income increasing when he began receiving his pension. From the dissent’s perspective, that decision became final thirty days after it was filed, and if the Husband had been dissatisfied with the order he should have appealed within the required time-frame.

The dissenting opinion also addressed several legal arguments regarding whether the Husband had “waived” any objection regarding jurisdiction to consider alimony, and whether the appeals court had the authority to decide the case based on a jurisdiction issue, when the Husband’s attorney hadn’t “raised” (made) this argument as part of his appeal. The dissent points out that the jurisdiction issue was first raised by the appeals court itself during the oral argument, neither attorney argued the jurisdiction issue in their legal briefs or addressed it during oral argument, and that the majority had not asked the attorneys to address the issue in supplemental briefs.

The dissent points out that if the Husband had appealed the reservation of jurisdiction over alimony in 1990, the appeals court would not have made a decision like it was doing now which takes alimony away from the Wife forever, but rather would have “remanded” the case back to the trial court to enter appropriate findings of fact. Remanded basically means to send the case back to the trial court, with instructions as to what the appeals court wants the lower (trial) court to do.

The majority opinions, on the other hand, in effect said that the Wife or the Wife’s attorney at the time of the trial in 1990, was responsible for insuring that the order contained all the proper findings to support reservation of jurisdiction regarding alimony; that the Wife should have appealed to make sure the order had what it needed to have; and if the order did not contain the required findings it had no legal effect. There are also ways short of an appeal to correct an order before it becomes final, by filing an appropriate motion. In practice, sometimes the Judge prepares the final order, for example when a party is not represented, but when a party has an attorney, the Judge usually instructs the prevailing party’s attorney to prepare the order.

As mentioned in Part I of the post, the appeals court decision in the Hill case is not final yet – the Wife’s attorney filed a Motion for Rehearing. I haven’t fully researched yet myself the issues raised by the majority and dissenting opinions, but it’s not infrequent that you think there should be a case out there clearly deciding some issue, but when you check, there isn’t. Sometimes it’s an issue that hasn’t been decided yet by an appeals court, and there are five different state court appeals districts in Florida which sometimes arrive at different decisions regarding the exact same issue. That’s when an issue sometimes ends up before the Florida Supreme Court.

The moral of the story, or advice for spouses now who want to be sure a trial court retains jurisdiction over alimony, is to be sure to include in the Final Judgment all the findings and requirements appeals courts have suggested are necessary for a trial court to properly retain jurisdiction. This includes, after giving due regard for the decisions of the appeals court covering your county and the particular facts of your case, making findings regarding all the relevant factors for determining alimony listed in the Florida alimony statute – F.S. § 61.08, awarding nominal alimony, and addressing the duration of the reservation of jurisdiction. It doesn’t make sense to take chances with an issue as significant as losing the right to possibly receive alimony in the future.

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The Florida Court of Appeal for the 3rd District of Florida (the appeals District that covers Dade and Monroe Counties) recently filed a significant opinion dealing with what has to happen for a court to “reserve” jurisdiction to award alimony, Hill v. Hill, 36 Fla. L. Weekly D 475 (Fla. 3rd DCA, March, 2, 2011). The opinion isn’t final yet – one of the parties has filed a Motion for a Rehearing – i.e. a request for the appellate court to hear the case again and reconsider its opinion. I’ll include in a future post more about the different courts in Florida, and the appeals process.

Reserving jurisdiction regarding alimony means the court is not awarding alimony at the time of the divorce, but is saying it will consider awarding alimony in the future. This is allowed under Florida law, for example, when one spouse needs alimony at the time of the divorce, but the other spouse does not have the ability to pay. Reserving jurisdiction is important, because if the court doesn’t award alimony at the time of the divorce, and jurisdiction is not properly reserved or retained, alimony is gone forever, which is what has happened so far for the Wife in the Hill case.

In this case, the trial court’s final divorce judgment in 1990 reserved jurisdiction to determine alimony in the future, when it was expected that the Husband’s income would increase when he started to receive his retirement pension. The Wife returned to Court in 2006 after the Husband retired and began receiving his pension, received an award of alimony in 2008, and the Husband appealed. Basically, the appeals court ruled the trial court’s simply stating in it’s opinion that it was reserving jurisdiction was not sufficient.

Although the formulation of what is required to properly reserve jurisdiction is stated a little differently in different parts of the appellate opinion, the opinion concludes with indicating that the trial court was required to have made a determination in 1990 regarding the Wife’s need for and entitlement to alimony, or to at least have awarded “nominal” alimony (e.g. $1 per month), and also to have set out some appropriate duration for how long it was reserving jurisdiction. The appellate court ruled that the trial court in 1990 simply stated that it was reserving jurisdiction without making any of the required findings or determinations, and therefore was not permitted in 2008 to award alimony – i.e. the attempted reservation of jurisdiction in 1990 was not effective because it didn’t follow the rules. (A trial court makes a determination or “findings” by including in it’s Order written statements of fact, e.g. “The Court finds ……”)

The “dissenting” opinion in the case saw things much differently than the majority. I’ll describe that in Part II of this post, as well as the implications, or moral of the story for spouses going through a divorce now. (There were three judges on the appeals “panel” in this case. One Judge wrote the official opinion of the court, and another wrote a concurring opinion that agrees with the ruling of the case – i.e. that the Wife could not receive alimony now, and added some additional or different reasoning than the primary opinion. The third Judge in this case wrote a dissenting opinion that disagrees with the ruling of the other two judges. The two judges who agreed with a result together make up the “majority” (2 out of 3) decision of the court).