Firm Shield

Firm Shield

Friday, March 27, 2015

OUR LAST POST ON BLOGGER.
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After several years on Blogger, we are shifting the blog to the firm's official website.
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We would like to thank the JUMPEM Internet Marketing team for the new Website Design for The Smith Family Law Firm.

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Friday, March 20, 2015

Family Law Update: March 20, 2015: Alimony, Violence and Recusal. Simple cases this week.

Wolfson v. Wolfson: March 18, 2015: 3rd DCA
3rd DCA granted writ of prohibition.  Trial judge should have recused herself as the trial judge's comments indicated that she had prejudged the case.

Polcz v. Polcz: March 18, 2015: 4th DCA
Trial court's calculation and ultimate finding that no alimony arrears were owed appeared to be in error as it was not reflected by the application of math to the facts before the court.  Further, no other explanation was provided as to why a finding of no arrearages was entered by the court.

Hair v. Hair: March 18, 2015: 4th DCA
Injunction for protection against domestic violence was reversed.  Petitioner failed to present sufficient evidence that she was a victim of domestic violence or was in imminent danger of becoming such a victim.  The fact that the daughter did not want to see the mother and mother's violation of an order entered in the domestic relations case did not support the entry of the restraining order.


If you have any questions regarding your particular family law issues, contact us by clicking here.



Friday, March 13, 2015

Amendments to ALIMONY: Links provided

We have been bombarded with questions regarding the status of the current bills before the State legislature with regard to alimony.  As in past years, we are not advocating any particular position regarding the possible amendment of alimony law in the state of Florida.  Further, we would only be guessing if we gave an opinion on where the law will stand after the session.  We can say that some sort of change seems much more likely than not.  Further, it is believed that the changes would take effect in October of 2015.  We will engage in more analysis of the bills as they move towards finalization and as the House and Senate bills move more in line with one another.  At that time we will provide a full analysis of what the changes will be.  In the meantime, we wanted to at least provide you links to the 2 different versions of the bill so you can track them in real time for yourself.

Here is the House Bill:  943

Here is the Senate Bill:  1248

March 2013 Update: Clear Error, Clear Error, CLEAR ERROR!!!

Solache v. Solache:  3rd DCA:  March11, 2015
Trial court erred in ordering that alimony would automatically increase when Husband’s child support responsibility ended because there was no specific factual finding or articulated reason in the judgment for the prospective automatic increase.
McGarvey v. McGarvey: 5th DCA: March 13, 2015
Trial court erroneously adopted Husband’s proposed Parenting Plan (50/50) thinking it was an agreed to parenting plan.  While Husband argued that there was substantial evidence to support an adoption of his proposed parenting plan, the 5th DCA rejected this argument as it was apparent that the trial court never made an independent assessment and simply made a mistake.  

Dugan v. Dugan: 5th DCA: March 13, 2015


Even though Wife was absent from second day of trial and there was an incomplete record due to a lack of a Court reporter, the appellate court reversed the trial court’s decision to not take into consideration Wife’s medical expenses when calculating alimony.  Even though Husband argued that Medicare covers all medical expenses, the appellate court noted that “no medical expenses are completely covered by Medicare.”  Again, while there was not an adequate record, when an error appears on the face of the judgment, it should be corrected.

Friday, March 6, 2015

Psych Exams, Rights of First Refusal, and Contempt!! March 6, 2015

Barry v. Barry: 5th DCA, March 6, 2015
If a trial court does not know the particular examinations that a psychologist plans to conduct, it should not grant a request for a psychological investigation.  In this case, the trial court’s order identified the purpose of the examination as the safety of the children but it did not identify the length of the examination, the type of testing, or whether the testing would be limited to methods routine to the profession.  The failure to specify the manner, conditions, and scope of an examination would effectively give the psychologist “carte blanche” to perform any type of psychological inquiry, testing, and analysis.  The 5th DCA remanded for a more particular order.

Harris v. Harris: 5th DCA, March 6, 2015
Trial court erred in calculating Former Husband’s and Former Wife’s incomes differently.  Trial court counted Husband’s pension, disability benefits and imputed minimum wage when calculating his income.  As to Wife, trial court imputed minimum wage but did not count her reserve pay.  Further, while Wife testified that her reserve pay was one amount, the 5th DCA noted that W-2s in evidence revealed a higher figure.  Finally, the award of attorney’s fees was improper because, contrary to the final judgment, there did not appear to be any evidence provided regarding reasonableness of rate or time.  Further, it was error to award attorney’s fees in the final judgment when the order on pretrial conference expressly provided that all issues regarding attorney’s fees would be determined at a subsequent hearing.

Castelli v. Castelli: 4th DCA, March 4, 2015
While Husband’s attorney’s email to opposing counsel did not explicitly state that he was point-by-point matching a third party offer to purchase the marital home, nor did it note specific details of the third party’s offer that were being matched, it still acted as a trigger to exercise his right of first refusal which had been agreed to in the parties’ marital settlement agreement.  The e-mail did not contain any terms and conditions which differed from the third party purchaser’s offer.  Since a right of first refusal inherently requires the holder of the right to accept the same terms and conditions as the third party offer, the 4th DCA deemed that the email implicitly adopted all terms of the third party contract.  Trial court erred in not recognizing this and the 4th DCA pointed out that Wife was the one who breached when she attempted to place time parameters on Husband to execute a purchase agreement in a unilaterally selected time frame.

Wix v. Wix: 2nd DCA, March 6, 2015
Trial court erred in not vacating a magistrate’s recommendations as the magistrate failed to consider the former husband’s 401K account as an available asset in determining whether the former husband was in contempt for failure to pay alimony.

Jenkins v. Jenkins: 2nd DCA, March 6, 2015

Trial court should not have allowed downward modification of child support as Husband was in arrears and failed to show that he was unable to comply with the previous support order.  An arrearage does not per se require denial of a modification petition so long as respondent can show that he or she was unable to comply with the previous support order.  However, in this case, no such evidence was provided.