The Power of the Appeal: Appealing Temporary Relief Orders

I received a call from a panicked attorney who had just lost a hearing. Her client was upset and she didn’t know what to do. She called me. She was an attorney from Washington D.C. who decided to take a case in Orange County, Florida. Her client lived in Washington D.C. and his Wife filed for divorce in Orange County, Florida. Assuming that it would be a simple and straightforward divorce she agreed to take the case. The Wife filed a Motion for Temporary Relief requesting alimony and child support. The Washington D.C. attorney attended the hearing via phone and in the end the court made many errors resulting in the Husband paying 95% of his net income to the Wife for child support and alimony. Additionally, the court ordered that the Husband pay the Wife’s attorneys fees. Of course, the Husband did not have the ability to pay this amount, so the court found him to be in contempt of court. We appealed.

Although trial judges have broad discretion in setting temporary alimony awards, any such award must be supported by competent, substantial evidence that demonstrates the need for support and the paying spouse’s ability to pay. Breitenbach v. Breitenbach, 838 So. 2d 1266 (Fla. 2d DCA 2003). In the case we appealed, the Fifth District Court of Appeal held that the trial judge’s reliance on an income figure for the husband that was contrary to the husband’s uncontroverted evidence regarding his then-current income was error. Additionally, the court held that “[t]he trial judge appears to have compounded the error by using a gross income figure for the husband.” See, e.g., Kingsbury v. Kingsbury, 116 So. 3d 473, 474 (Fla. 1st DCA 2013). The ability to pay alimony should be based on the party’s net income. In the end, the Fifth District Court of Appeal vacated the current temporary relief order and remanded for the trial court to re-evaluate temporary support in light of better information and to enter a new order. The Court also reversed the contempt order.

In any court proceeding it is important to demonstrate to both the Judge and opposing counsel that you know the law and expect them to follow it and that you are not afraid to appeal if they do not. This keeps all parties honest and lets everyone know that you are serious and will not be bullied. Judges are given discretion when it comes to many legal matters involving family law. However, they still must follow the existing case law.

Having an attorney who is not afraid to challenge a judge’s ruling will often result in judges making more thoughtful, considerate, and reasoned rulings because judges don’t want to be wrong. In fact, if your trial attorney fails to make an objection or to argue a certain point, you may not be able to argue that issue on appeal. This is because the trial judge or jury should be given the opportunity to address the issue, before you can argue error on appeal. The appeals process can be lengthy, expensive, and tedious. It is the judicial system of checks and balances at work. At the end of the day judges are merely human and will always make mistakes. Having an attorney who knows the law, who can make the appropriate arguments and objections in a polite but persuasive manner oftentimes can avoid the need to appeal; and if an appeal is necessary, can increase your chances of success on appeal.