Posted by Nydia Streets of Streets Law in Florida Divorce

Can a Florida family court award shared parental responsibility but also award ultimate decision-making regarding specific matters affecting children? Ultimate-decision making authority gives a parent the right to be the sole decider over issues specified by the court when the parents do not agree otherwise. This was one issue appealed in the case Moses v. Moses, 5D20-2534 (Fla. 5th DCA September 17, 2021).

The parties were married for about 15 years by the time a petition for divorce was filed. The former husband was rated 100% disabled by the Veteran’s Administration. The former husband was unemployed throughout the pendency of the case, but he received military retirement pay which exceeded the former wife’s income. He was ordered to pay temporary support to the former wife while the case was pending, and eventually, the former wife also received a monthly sum of social security derivative benefits as a result of the former husband’s application for social security benefits being approved.

A social investigation was performed during the case, and the investigator eventually concluded both parents were capable of parenting their children. It was also noted that the former wife was not cooperating in shared parental responsibility or communicating information to the former husband about the children. At the final hearing, the former husband proposed an equitable distribution plan that would allow him to keep the marital home while assuming more marital debt than the former wife. The former wife proposed selling the home and splitting the net proceeds. A final judgment was entered adopting the former husband’s equitable distribution plan, but ordered the home to be sold with the former husband’s share of equity to be paid to the former wife to pay his child support and alimony arrearages. The judgment awarded shared parental responsibility, but gave the former wife ultimate decision making authority on 18 areas of the children’s welfare. The former husband appealed.

As to equitable distribution, the appellate court found there was an unequitable distribution of assets and debts without findings to support it. The court held “Here, Former Wife is correct that the trial court’s distribution of liabilities mirrored Former Husband’s proposed distribution of liabilities. However, Former Husband’s proposed distribution was expressly premised upon his maintaining the marital home. The trial court deviated from Former Husband’s proposed distribution by ordering the sale and equitable distribution of the proceeds from the marital home. Therefore, it cannot be said that Former Husband consented to any inequitable distribution of assets and liabilities. As the trial court made no findings of fact to justify an unequal distribution, we remand to the trial court to either make an equitable distribution or to set forth its findings of fact that might justify an inequitable distribution.”

Turning to support issues, the former husband argued it was error not to credit him for the temporary support he paid while the case was pending. The court agreed and ordered this to be addressed by the trial court. As to the requirement that he obtain life insurance to secure his alimony and child support obligations, the court held “Here, the amended final judgment fails to make any findings at all regarding the cost and availability of insurance. We therefore reverse the award of life insurance and remand for consideration and findings regarding its necessity, cost, availability, and Former Husband’s ability to purchase same.”

Last, discussing the issue of parental responsibility, the court held “Here, the amended final judgment refers to record evidence that could support awarding Former Wife ultimate responsibility regarding a limited number of specific matters. But the parenting plan decreed by the trial court awards Former Wife ultimate responsibility regarding eighteen separate areas, which when taken together, overcome its award of shared parenting. Such a broad grant essentially transforms the trial court’s shared parenting decision into a currently unsupported award of sole parenting to the Former Wife. We therefore remand for the trial court, in accordance with section 61.13(3), Florida Statutes (2020), to determine which specific aspects of the children’s welfare, if any, for which the Former Wife should have ultimate decision-making responsibility.”

Facing a Florida divorce with multiple issues such as those in this case may be overwhelming. Contact a Miami family law attorney for help.