This BLOG provides brief summaries of the most recent family law appellate cases and statutes that may effect the issues our existing and prospective clients are facing. This is not an exhaustive list and do not automatically assume that if a case seems similar to your facts that the same result will be reached. We encourage individuals to secure counsel. These are very difficult issues to go through alone.
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
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.
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.
ATTEMPT TO USE CATCH-ALL LANGUAGE IN SECOND AGREEMENT UNSUCCESSFUL IN ESCAPING TERMS OF FIRST AGREEMENT
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.
INCARCERATED FATHER STILL DESERVING OF DUE PROCESS
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.