Posted by Nydia Streets of Streets Law in Florida Divorce
A case just released by a Florida appellate court on November 6, 2018 discusses prospective timesharing orders and distribution of a retirement account used to fund household expenses during litigation. The case Horton v. Horton, 1D17-5223 (Fla. 1st DCA 2018) sheds light on these interesting issues.
The wife appealed the court’s timesharing order related to the couple’s adopted son, while the husband cross-appealed the court’s order related to alimony and equitable distribution. As to the timesharing, the evidence at trial indicated the child had a closer bond with the mother than with the father, mainly due to the contentious nature of the parties’ divorce. The trial court ordered a graduated timesharing schedule with the father in conjunction with counseling, after which the schedule would eventually evolve to a weekly rotating schedule.
The wife argued this approach was not based on the best interest of the child, but instead on a prospective guess as to the best interest of the child. The court had no way of knowing whether or not the therapy would be successful and therefore could not project that a weekly rotating schedule would be in the best interest of the child a year from the date of the final judgment. The appellate court agreed with the wife and reversed the timesharing ruling.
As to the husband’s appeal, the court discussed the husband’s contention that the trial court erred in valuing his 401K account as of the date of trial even though the account continued to be depleted post-trial because he was using the funds to support the household. The appellate court found no error in this because, “The husband has not shown that the trial court was required to amend the evidence post-trial, and we do not find that the trial court abused its discretion.” However as to the husband’s argument that the court did not make proper factual findings as to the need and ability to pay alimony, the appellate court agreed with him and reversed the alimony award.
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