Court: HPV diagnosis doesn’t support negligence suit

DivorceFlorida’s Fourth District Court of Appeal recently was asked to rule on whether a cause of action for negligent transmission of a sexually transmissible disease might be asserted upon common law negligence principles.

The case Kohl v. Kohl (Case No. 4D13-1194) involves a woman who, in 2009, filed a two-count petition seeking to dissolve her marriage and to extract damages from her soon-to-be ex-husband for “assault by way of transmission” of the human papillomavirus (HPV). The trial court severed the claim for damages and entered an amended final judgment of dissolution of marriage.

The former wife filed a second amended complaint attempting to state a cause of action for negligent transmission of a sexually transmitted disease based on the former husband’s failure to warn her during their marriage that he had HPV. She learned she had contracted the disease during a routine pap smear. The former wife claimed that since she had undergone a hysterectomy, "he knew or should have known he had been exposed to HPV,” the complaint alleged. However, the appellate court noted that hysterectomies are performed for a number of reasons including tumors, cysts, endometriosis, cancer, etc.

The former wife also alleged in her complaint that her ex had engaged in extra-marital affairs during the course of their marriage and that he knew, or should have known, he had been exposed to HPV. However, there were no allegations that he had been diagnosed with the virus or that he had experienced any symptoms.

Read more: Court: HPV diagnosis doesn’t support negligence suit

Marital Settlement Agreement calls for wife to get alimony for life

alimony dollar signMany people believe that alimony stops when the former spouse receiving it remarries. But that’s not always the case, as evidenced by a recent ruling coming out of Florida’s Second District Court of Appeal.

In the case of Herbst v. Herbst (Case No 2D13-2745), the couple entered into a marital settlement agreement (MSA) that required the ex-husband to pay non-modifiable alimony to his former wife for the rest of her life. The MSA was incorporated into the final judgment of dissolution, which was rendered in August 2009. However, about a year later, the former wife remarried and the former husband petitioned the court to terminate his obligation and asked for the return of alimony paid after the date of his ex’s remarriage.

The trial court listened to both sides, which it found to be “self-serving” and instead based its decision on a legal construction of the MSA determining that while the alimony was intended to be permanent, section 61.08(8) of Florida statutes provides for the termination of permanent alimony “upon the death of either party or upon the remarriage of the party receiving alimony.”

Although the MSA stated the ex-wife would receive non-modifiable alimony for life, the court concluded that it did not address termination and therefore it was governed by section 61.08(8), which calls for alimony to be terminated upon remarriage.

During another court hearing, the court found that the husband overpaid a little more than $50,000 in alimony. However, he awarded $26,000 in attorney’s fees and costs to the former wife. He ordered the former husband to pay $7,500 within 30 days and reserved jurisdiction to address payment of the remaining amount. He later entered a final order setting off the remaining $18,500 in attorney’s fees and costs against the former husband’s award of $50,207.42 for alimony overpayment.

Read more: Marital Settlement Agreement calls for wife to get alimony for life

College students and child support, when does it end?

Money fightIn many divorce cases the parent who is ordered, or agrees to make child support payments, must do so until the child reaches the age of majority or is no longer financially dependant on their parent, i.e. living at home.

But what about the child who goes off to college and lives on campus, but who returns to live with a parent during breaks in the school year? Must child support continue? That’s a question most often answered in marital settlement agreements as occurred in a recent case before the Fourth District Court of Appeal.

In this case, the father agreed, after his 2004 divorce was finalized, to continue paying child support on the couple’s three children until they reached 21 years of age, as long as they attended college and still lived at home with the mother.

When one of the children went off to college, and was living on campus, the father petitioned the court to modify child support since the child had reached the age of 18 and was living away from home.

The ex-wife argued that the child lived on campus and had to vacate the housing during school breaks. In addition, she noted he would be living with her during the summer while taking classes at a local community college.

Read more: College students and child support, when does it end?

Appellate court: Permanent alimony requires clear and convincing evidence

evidenceIn a moderate-term marriage, the decision to grant permanent alimony requires a finding, by clear and convincing evidence, that permanent alimony is appropriate.

In a recent decision by the Second District Court of Appeal, the court determined that while the lower court had the right to grant the ex-wife permanent alimony after the couple’s 12-year marriage fell apart, it did so with findings that “appear to better support an award of durational alimony without explaining why permanent periodic alimony would be more appropriate.”

Facts of the case:

The couple was married in 1999. The husband was a police officer and the wife was in the financial services field. Both worked in New York. The husband worked extensive hours at ground zero following the collapse of the twin towers, which resulted in physical and emotional problems. By 2007 he was put on disability. The wife lost her job in the aftermath of the tragedy.

In 2011, after moving to Florida, the wife filed for divorce and told the court that she suffered from psychological and physical issues that limited her ability to get a job. However, the appellate court noted that the evidence did not support a finding that these conditions were permanent.

While the lower court considered both her and her ex-husband’s health and employment status, the appellate court found that the lower court improperly applied evidence that the former wife’s health and employment status were likely to improve in the two years following the entry of its judgment.

Read more: Appellate court: Permanent alimony requires clear and convincing evidence

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