Significant Appellate Cases

Iannuzzelli v. Lovett, 981 So. 2d 557 (Fla. 3d DCA 2008). The firm successfully defended a lower court judgment in a novel Florida case, recently cited by the Indiana Court of Appeals and the Pennsylvania Superior Court. In Iannuzzelli, Florida matrimonial law intersected with federal immigration law—in a troubling collision now being repeated around the country. We represented Mr. Lovett, the US citizen husband, on appeal only.

By way of background: a US citizen, who wants to marry an alien—and sponsor him or her for permanent residence in the United States—must sign an “Affidavit of Support.” The affidavit, mandated by federal immigration law, obligates the citizen to support the alien at 125 percent of federal poverty guidelines. It aims to prevent the alien from becoming a “public charge” eligible for government benefits. And to ensure that the citizen remains liable for the alien’s support, the citizen’s obligation continues even if the couple divorces and even if the alien can—but will not—support him or herself. The result: the now permanent resident alien who divorced the citizen can, in effect, enjoy permanent spousal support under federal immigration law, regardless of state (Florida) family law—so long as the alien does not die, remarry, become a US citizen, lose lawful permanent resident status and leave the country, or actually work for more than 40 quarters. And there is no federal obligation to work.

All this complex federal law played out in our simple state divorce case: dissolution after a one-year marriage, between people of modest means, who had no children and no property to distribute between them. Now the rub: the divorced alien—as well as the government—can enforce the affidavit of support against the citizen in any state or federal court. And the affidavit permits an award of attorney’s fees associated with collecting monies owed to the alien under the terms of the affidavit. The Iannuzzelli appeal centered on the ex-wife’s attempt to collect attorney’s fees in state court under the federal affidavit of support.

The trial court had not awarded the alien wife any damages under the federal affidavit. Rather, in this modest case, it awarded the wife $9000 in bridge-the-gap alimony (“move out money”) under Florida law—and denied her request for $23,000 in attorney’s fees and costs under federal law. We successfully argued that the immigration statute and affidavit of support allow for attorney’s fees only when a money judgment is actually obtained under that statute. While the trial court had found our client liable, it awarded his alien spouse no actual damages. So, there was nothing to collect—and no attorney’s fees could be awarded for collecting, or trying to collect, nothing.

Weiss & Kahn was not involved in the underlying issue of the enforceability of the affidavit of support. But case law around the country uniformly agrees that it is enforceable—regardless of the unintended consequences for the unwary citizen looking to marry an alien.

Pubillones v. Lyons, 943 So. 2d 881 (Fla. 3d DCA 2006) (on mot. for reh’g), rev. denied, 958 So. 2d 920 (Fla. 2007). The parties in this divorce case separated after only eleven weeks of marriage—and then spent two years and $300,000 battling over custody of, and visitation with, their infant daughter. The wife appealed the trial court’s order that denied her any attorney’s fees. The husband hired us to protect the trial court’s decision.

The firm succeeded despite unfavorable facts such as the husband’s having a far better-paying job than the wife. We proved—though neither party nor the trial judge had noticed—that the wife radically under-reported her income in her financial affidavit, while the husband mistakenly over-reported his income. And we uncovered competent substantial evidence in the record to support the trial court’s finding that the wife voluntarily limited her income. Controversially: despite finding that the wife had intentionally underemployed herself, the trial court did not impute an actual income figure to her. We argued that the statute did not require that a dollar amount be specified in this unusual factual situation—where alimony and child support were not at issue, but only entitlement to attorney’s fees. In short, we persuaded the appellate court that the trial court properly denied the wife any attorney’s fees—because having the husband pay them would reward the wife’s decision to squander her talents and take a low-skill, low-paying job. The wife’s employment choices, we insisted, were no reason for saddling the husband with her attorney’s fees.

The wife sought—and we successfully opposed—review in the Supreme Court of Florida, which declined to exercise jurisdiction.

Perez v. Arellano, 79 So. 3d 33 (Fla. 3d DCA 2012). The firm obtained a Per Curiam Affirmance of a final judgment that granted the wife, an executive with a well-known multinational corporation, permission to relocate to Peru with the parties’ young children. This complex international family relocation case arose under relatively new legislation: Florida Statutes Chapter 61.13001, which governs parental relocation with a child.

Gottlieb v. Cove, 48 So. 3d 61 (Fla. 3d DCA 2010). In this curious case, the father of a former wife appealed an order that held him in contempt for refusing to appear for deposition and required him to pay a purge amount to the former husband’s attorney. The former husband hired us to defend the contempt and purge order. We convinced the appellate court—by motion and brief—to dismiss the appeal on the grounds that our client’s former father-in-law (i) failed to provide the Court with a record adequate to support his appeal and (ii) willfully continued to defy the very order he was appealing by still refusing to attend his deposition. Essentially, we persuaded the court that a litigant cannot reasonably seek benefits from the legal system while actively defying it.

Toiberman v. Tisera, 998 So. 2d 4 (Fla. 3d DCA 2008). This important case has been cited in other state courts and discussed in almost a dozen law review and treatise articles. While we did not prevail in this split decision, the dissent relied heavily on the points we made in our brief and in oral argument.

The trial court approved a couple’s agreed order to have “all of the issues” in their divorce decided by binding arbitration. After a two-day proceeding, the arbitrator issued his decision dissolving the marriage—ruling on child custody, visitation, child support, alimony, equitable distribution of assets, and attorney’s fees. The trial court approved the arbitrator’s award by written order. The husband appealed. We represented the wife.

The appeal revolved around the problem that Florida has two irreconcilable statutes that cover alternate dispute resolution. Chapter 44 specifically forbids arbitration of disputes involving child custody, visitation, or child support. Chapter 682 contains no such limitation. The parties’ agreement to arbitrate, of course, made no reference to either statute. Even though the husband ignored every requirement for challenging the award of the arbitrator under either statute, the appellate court majority decided that it was fundamental (plain) error—given the plain meaning of Chapter 44’s exclusion of “children’s issues” from arbitration—to arbitrate any aspect of the case. (Fundamental error can be raised at any time.)

The dissenting appellate judge agreed with us that the husband had failed to preserve any alleged errors for appeal. First, he never objected to having “all of the issues” resolved by binding arbitration. To the contrary, he knowingly agreed to this—presumably under Chapter 682, which permits the arbitration of any controversy. Second, the husband failed to challenge the arbitration award in the trial court within the prescribed time frame or on any of the limited grounds allowed by law. This made the arbitral award final, and insulated it from challenge in any court, trial or appellate—in keeping with public policy to encourage alternative dispute resolution, in part by making it difficult to overturn.

See our page on Significant Immigration Cases for accounts of some of our immigration appeals.