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Friday, December 9, 2011

"Roy's Desk" Florida Family Law Summary: Week of December 5, 2011

The Smith Family Law Firm, P.A. "Roy's Desk"
407 790 4800
815 Orienta Ave., Suite 2050
Altamonte Springs, FL 32701

Beasley v. Beasley (4th DCA)  12/7/11:


In this case involving a 21 year marriage, the trial court’s award of only one year of bridge the gap alimony was appropriate.  The Court imputed income to wife of $50,000.00 as she had earned an amount comparable twenty years ago and there was evidence that Wife was limiting her income.  Further, Wife took 4.5 million in assets in equitable distribution.  The brief amount of bridge the gap alimony was crafted to allow Wife time to gain traction in her career and have her investments begin to yield revenue.  As a rehabilitative plan was never provided it was only appropriate to award a small duration of bridge the gap alimony.

Further, the equitable distribution of the couple’s properties were indeed appropriate.  While Wife claimed that she and Former Husband entered into a joint stipulation providing that the marital home would go to Former Husband and that the trial judge erred by ignoring their stipulation. She asserted that she could not afford the home’s overhead and that it will not be easy to sell the house, even with aggressive marketing. The parties, however, never “unequivocally agreed or stipulated to the court” to award the marital home to Former Husband.  A binding agreement to convey real property from the marital estate to one of the parties requires a writing signed by the parties, or an explicit bilateral stipulation on the record before a court reporter. See § 725.01, Fla. Stat. Wife’s alleged joint stipulation had neither, and no agreement was “entered and filed” in accordance with section 61.075(3).
It was proper of trial Court to treat jewelry received by wife by husband as a marital asset.
Post petition spending by husband did not entitle wife to a credit as none of the spending was found to be waste.

Based on the accounting testimony provided, the trial judge did not err in determining that Former Husband’s advance distribution of his 401(k) account was $351,000 instead of $450,000, because of the deferred taxes withheld by the bank.

Frady v. Deringer (4th DCA)  12/7/11


Trial courted erred in setting aside a default judgment of dissolution (with the exception of the portion of the judgment which dissolved the marriage) as the record did not contain competent, substantial evidence that the former husband did not receive notice. The standard of review of an order setting aside a default judgment is gross abuse of discretion. A certificate of service raises a presumption of delivery. A simple denial of receipt does not automatically overcome the presumption and an evidentiary hearing is necessary.

Irvin v. Irvin (2nd DCA) 12/7/11


In first mediated agreement, it was noted that the parties have received a letter of protection for $33,000 and at such time as this or any other sum is actually available, the parties shall equally share in said asset.
After this agreement was made, the parties began actions to modify their judgment with regard to their shared children (child support and time sharing).  A second agreement was reached which did away with the need for an income deduction order for child support as well as other issues involving the children but included language that the agreement “[was] intended to be a full settlement of all pending issues between the parties, except for any outstanding uncovered medical expenses for the minor children."
Former husband alleged that this did away with his obligation to pay any portion received from the $33,000.00 covered in the first agreement and filed a motion to enforce the second agreement on this point.  The trial court granted husband’s motion
The 2nd DCA reversed finding that the split of sums flowing from the $33,000.00 letter of protection had already been established in the first agreement (the parties were simply waiting to receive payment on the letter to then divide).  It therefore was not an “outstanding issue.”  Further, the trial court should have found the husband in contempt for failure to pay child support as he did not challenge the finding of contempt and actually conceded that the trial court erred on appeal.

Miranda v. Munoz-Ortiz (2nd DCA) 12/9/11


Trial Court erred in summarily denying incarcerated father’s motion for rehearing.
In his motion for rehearing and responses to the final order, the incarcerated father argued that he attempted to appear at the final hearing telephonically and that exhibits would show that he attempted to appear. Therefore, the trial court should have provided the father with an opportunity to prove on rehearing that he attempted to appear telephonically at the final hearing but that he was denied the opportunity to do so. 

Saturday, December 3, 2011

"Roys Desk" Florida Family Law Summary Week of November 28, 2011

The Smith Family Law Firm, P.A. "Roy's Desk"
407 790 4800
815 Orienta Ave., Suite 2050
Altamonte Springs, FL 32701

Sullivan v. Hoff-Sullivan (First DCA) 12/2/11
The trial court should have determined the modification issue pursuant to the child support guidelines found in section 61.30, Florida Statutes. See § 61.30(1)(a), Fla. Stat. (“The child support guideline amount as determined by this section presumptively establishes the amount the trier of fact shall order as child support in an initial proceeding . . . or in a proceeding for modification of an existing order . . . .”); see also Finney v. Finney, 995 So. 2d 579, 581 (Fla. 1st DCA 2008) (noting that a trial court’s discretion concerning child support is subject to the statutory guidelines set forth in section 61.30).

Kernzer v. Kernzer (Third DCA) 11/30/11
A creditors attempt to pierce the claim of homestead rightfully failed.   The creditor attempted to claim that the sale of the marital home and disbursement of proceeds under the MSA did not evidence a good faith belief that the funds would be used to reinvest into a new residence (citing the Myers case).  However, this case was distinguishable from the Myers because the language of the MSA in this case did not contain the same broad language that “any and all outstanding judgments pending against” the husband would be paid from the proceeds of the sale of the marital home. Instead, the parties here agreed that any “lien or encumbrances on the marital home not specifically listed” in the parties’ MSA would be Stuart’s sole responsibility and would be paid from his share of the proceeds. There was no language in the MSA that Stuart would satisfy “all judgments pending” against him. The trial court correctly found that the judgments the creditor held against the party against did not constitute liens or encumbrances against the homestead property. See Prieto v. Eastern Nat. Bank, 719 So. 2d 1264, 1266 (Fla. 3d DCA 1998) (judgment held by general creditor not a “lien or encumbrance” on homestead property). The language of the Florida Constitution expressly provides that the homestead is exempt from forced sale under process of any court, and “no judgment, decree or execution shall be a lien thereon.”

Buhler v. Buhler (5th DCA) 12/2/11  (Try to fight the urge to think of Matthew Broderick)

Trial Court erred in only allowing modification of child support based on husband’s failure to exercise time sharing to the date of the petition for modification.  The Legislature has specifically provided that a parent's failure to exercise court-ordered or agreed-upon time-sharing, not caused by the other parent, resulting in the adjustment of child support "shall be deemed a substantial change of circumstances. . . ." § 61.30(11)(c), Fla. Stat. (2001). That modification is "retroactive to the date the noncustodial parent first failed to regularly exercise court- ordered or agreed visitation."