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

The Smith Family Law Firm, P.A. "Roy's Desk"
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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."