Divorce spouses may make changes to settlement by agreement

In the case of Rickenbach v. Rickenbach, 32 So.3d 732 (Fla. 5th DCA 2010), the trial court failed to follow a written stipulation in the parties divorce case.  The Appellate Court reversed.

In 2003 the former trial judge ordered the Husband to pay rehabilitative alimony to the Wife for 36 months during which time she was to enter into and complete a dental hygienist program. The original judge also specifically denied permanent alimony because he considered the parties' ten year marriage to have been short-term. The Wife enrolled in the program and was advancing until the Husband undertook a series of actions specifically designed to undermine her progress (which were never explained in the opinion), which forced her to drop out of the program. The Wife then sought to have the rehabilitative alimony either extended or converted into an award of permanent alimony. Before the matter came to trial however, the parties stipulated that the Wife would not seek the extension; instead she would seek only the conversion to permanent alimony. Neither party, however, told the trial judge about their stipulation. At the conclusion of the trial, the successor judge awarded an extension of rehabilitative alimony and specifically denied a conversion to permanent based on res judicata (i.e., the original trial judge had denied the award). Both parties then moved for rehearing and explained that neither wanted the extension. The judge denied rehearing and the District Court held:

1. "This is a troubling case. It is troubling because the trial judge fashioned a fair and equitable result after carefully considering the evidence presented to him. Unfortunately, it appears that the relief fashioned was not what either party wanted, and neither seems to have told the court during the course of the trial that the request for the relief that was granted had been withdrawn by stipulation. Thus, we are compelled to reverse."

2. "We begin by noting that in every case the issues in a cause are made solely by the pleadings…. [T]he parties here had a clear procedural foundation allowing them to amend the former wife's claim by a written stipulation, even without leave of court."

3. "Furthermore, stipulations narrowing the issues, or as in this case, modifying the former wife's supplemental counter-petition so as to drop her alternative request to extend her rehabilitative alimony plan, are of value to the legal system as they simplify the issues, limit or shorten litigation, save costs to the parties, and preserve judicial economy and resources."

Does a claim of mistake invalidate a divorce agreement?

In the case of Rachid v. Perez, 26 So.3d 70 (Fla. 3rd DCA 2010), the court ruled a claim of mistake in a settlement agreement is invalid unless conclusively proven.

The husband and wife were married in 1978 and entered into a prenuptial agreement which provided that the past, present and future property of each spouse would remain the separate property of the respective spouse. In 2006 the husband died while divorce proceedings were pending. The wife sought an elective share of the estate along with other property. The trial court ordered mediation, the parties settled the case and the trial court approved the agreement. When the wife later failed to comply with the terms of the agreement, the personal representative of the estate moved to enforce the settlement. The wife appeared at the hearing and testified that she wanted more time to consult with an attorney and to investigate the settlement and the prenuptial agreement. The court granted the motion to enforce. The wife did not appeal. Instead, she retained new counsel who filed an emergency motion to stay the proceedings, a motion for rehearing and a motion to set aside the order of enforcement. The motions were denied and the wife appeal, seeking rescission of the settlement agreement. The District Court held:

1. "[The wife's] argument is without merit as the record does not support the legal remedy of rescission on the basis that the settlement agreement was the product of unilateral mistake."

2. "Under Florida law, the party seeking rescission based on unilateral mistake must establish that: (1) the mistake was induced by the party seeking to benefit from the mistake, (2) there is no negligence or want of due care on the part of the party seeking a return to the status quo; (3) denial of release from the agreement would be inequitable; and (4) the position of the opposing party has not so changed that granting the relief would be unjust."

3. "Here, [the wife] does not claim that any party misled or induced her to enter into the settlement agreement. Rather, she contends that her attorney misled or induced her.

Is pre-nuptial valid if not all the assets are disclosed?

In the case of Foster v. Estate of Edward Gomes, 27 So.3d 145 (Fla. 5th DCA 2010), the court stated that if the major assets were disclosed, but minor ones were not, the pre-nup is valid.  Prior to the marriage, the parties entered into an antenuptial agreement in which the Wife waived all her right to the Husband's property, including her right to an elective share. Following the Husband's death in 2006, his will was admitted into probate and all the property not devised to his wife was left to his lineal descendants. The Wife filed a notice of her election to take her elective share pursuant to section 732.702(1), Florida Statute (2006.  The trial court found that the Agreement was valid and enforceable, that the Wife had waived her right to an elective share of the estate and that the Husband's failure to disclose a minor asset did not affect the enforceability of the agreement. The District Court held that Florida law does not require prior disclosure of assets for an antenuptial agreement under the probate rules:

          1. "Florida law does not require prior disclosure of assets for an antenuptial agreement. § 732.702(2). Recognizing this, Appellant argues that a disclosure, once made, albeit voluntarily, if inaccurate or fraudulent, invalidates the antenuptial agreement, citing [the dissenting opinion in an earlier Supreme Court decision]."

2. "Unfortunately for Appellant, that dissenting opinion has not generated a consensus either within the Florida Legislature or Florida Courts. We prefer, instead, to rely upon the binding majority opinion."

3. "[T]he law continues to accommodate the desires of older Florida residents to marry again without risking an unwanted disposition of a lifetime's assets due to a partial disclosure."

 

Is pre-nuptial valid if signed 10 days before the marriage?

In the case of Gordon v. Gordon, 25 So.3d 615 (Fla. 4th DCA 2009), the upheld the parties' pre-nuptial agreement.

The parties entered into a prenuptial agreement ten days prior to their marriage. Neither party had legal counsel but had discussed the agreement for several months. The wife was "an individual with a high level of education and business acumen who, having twice married, understood the significance of the document she was about to sign and chose not to seek the advice of a lawyer." The agreement essentially provided that each party's property at the time of the marriage would remain his or her separate property. The agreement included a section entitled "Pension Benefits" in which each waived his or her right to the other's such benefits. In his financial disclosure, the husband listed various pension accounts but did not specify the pension he would receive from his employer. The trial court found that there was sufficient mention of pension benefits to avoid a finding of fraud, duress or coercion and the District Court affirmed:

1. "We first address whether the agreement was reached under duress, coercion or overreaching. The record before us presents the former wife as an individual with a high level of education and business acumen who, having twice married, understood the significance of the document she was about to sign and chose not to seek the advice of a lawyer. And, while the parties disagreed over the amount of time the former wife had to contemplate the agreement, we hold that a trial court does not abuse its discretion by declaring that a period of ten days prior to the marriage is sufficient time for one to exercise the opportunity to review the agreement, and, if one so chooses, to seek the advice of legal counsel."

2. "We next address whether the former husband's failure to specifically disclose his airline pension plan constitutes fraud, deceit, or misrepresentation. The agreement specifically provided that each party shall retain as separate property all retirement accounts and property listed on the attached schedules."

3. "Additionally, the agreement included a provision specifically addressing pension benefits under its own section heading. The former husband's schedule of property referenced "Retirement Plans (Keogh, 401(k), etc)" and specifically listed the former husband's 401(k) plan through his employer; however, no mention was made of the airline pension plan of which the former husband was a beneficiary."  When considering the value of the employer pension in light of the other substantial assets that the former husband fully disclosed, the prominent mention of pension benefits in the body of the agreement is sufficient to provide the former wife with a general and approximate knowledge of the husband's resources."

Is the Court required to follow a settlement agreement if it is unfair?

In the case of Rocha v. Mendonca, 35 So.3d 973 (Fla. 3rd DCA 2010), the court held it was

ERROR FOR LOWER COURT TO REWRITE PARTIES' SETTLEMENT AGREEMENT IN RULING THAT WIFE WAS ENTITLED TO IMMEDIATE ACCESS TO THE FUNDS OF FORMER HUSBAND'S RETIREMENT PLAN WHERE AGREEMENT ONLY REQUIRED TRANSFER BY QDRO AND THE RULES OF THE PLAN DID NOT PROVIDE FOR IMMEDIATE ACCESS TO THE FUNDS. 

The parties entered into a Settlement Agreement pursuant to which the Wife was entitled to $270,000 by way of Qualified Domestic Relations Order ("QDRO") from the Husband's retirement plan. The Wife was also entitled to $140,000 by way of QDRO from Husband's 401(k). The agreement further stated that the marital house was to be sold but up until such time as the Wife received "the first funds" from either of the retirement plans, the Husband would pay the utilities on the home. Thereafter, once the Wife received "the first funds," she would be responsible for the utilities until the house was sold. The exact language of the Agreement was: "Upon transfer to the Wife of the first funds in either paragraph a [the retirement plan] or b [the 401(k)], the Wife shall be responsible for the payment of all utilities…." Some months later, the Wife petitioned the court after learning that access to the retirement plan was contingent upon a triggering event (retirement, disability, and separation from service). Although she had received full payment from the 401(k), she was not allowed to access the $270,000 because of the plan's rules. The Wife argued that the parties intended for her to receive all of the funds immediately. The Husband explained that per the rules of the Retirement Plan, the Wife would not be able to access the money until the triggering event and a portion of the plan was not even transferable through a QDRO. The trial court relied heavily on the above quoted language regarding the payment of utilities to find that the parties expected the Wife to receive all of the funds immediately. The court granted the Wife, among other things, the remaining balance of the 401(k), to satisfy the remaining debt. The District Court reversed: 

"Although a trial court may be motivated to do what it considers to be fair and equitable, it retains no jurisdiction to rewrite the terms of a marital settlement agreement. Under the guise of enforcing the agreement, the trial court here impermissibly modified it."

Does a marital settlement agreement alter a prior annuity?

In the case of Stollmack v. Stollmack, 32 So.3d 756 (Fla. 2nd DCA 2010) held that nothing in the marital settlement agreement altered an annuity from a personal injury lawsuit.

During the parties' marriage, the Husband was involved in a motor vehicle accident. He filed a personal injury claim and the Wife filed a loss of consortium claim which they settled against the driver. The settlement was funded through an annuity which consisted of six scheduled lump sum payments to be paid to the parties jointly through 2010 and thereafter a minimum of 240 monthly payments commencing in 2011. The annuity provided that if the Husband died, the Wife would receive payment for her consortium settlement at a rate of fifty percent of the originally scheduled payments for the remainder of her life. If the Wife died before the Husband, however, the payment amount would remain the same and he would receive payments for the rest of his life. If both the Husband and Wife were to die before the 240 installment payments were made, the estate of the last person to die would receive the remaining payments. In 1993, the parties began dissolution proceedings. As part of their property settlement, the Husband agreed to waive his interests in the Wife's pension and stocks and the Wife agreed to give up her interest in the annuity during the Husband's lifetime. The Wife's attorney prepared an agreement stating that the Wife waived her claim to the annuity but which also stated in relevant part, "Wife shall remain the irrevocable beneficiary and shall be entitled to receive by the existing annuity contract any remaining benefits payable upon the Husband's death." The Husband's attorney struck this language and later tried to get the Wife to sign a release, giving up her right to annuity payments after the Husband's death. The Wife refused, explaining that she understood that the agreement would be read as if the stricken language never existed. The District Court held:

1. "[The Wife] testified that her intent with regard to the stricken portion of the property settlement agreement was that the document would simply be read as if that sentence did not exist. [The Husband] likewise testified that the meaning of the strikeout was that the sentence was to be deleted from the document. [The Husband] argued that by agreeing to remove that sentence, [the Wife] had waived her right to receive payments from the annuity after his death."

2. "We reverse the order requiring [the Wife] to relinquish her rights in the annuity upon [the Husband's] death as well as the order sanctioning her for refusing to do so. The parties' property settlement agreement included a provision addressing the disposition of the parties' rights under the annuity. In that provision, [the Wife] expressly waived her interest in the annuity payment during [the Husband's] lifetime, nothing more . . . ." 

3. "Absent a similar provision waiving her right to payments after [the Husband's] death, that right remained intact. When [the Wife] entered into the property settlement agreement she had a vested right to those payments by virtue of the annuity, and nothing in the property settlement agreement altered that right."

Can a marital settlement agreement be modified by a judge?

In the case of Seawell v. Hargarten, 28 So.3d 152 (Fla. 1st DCA 2010), the district court held the Final Judgment didn't contain a reservation of jurisdiction clause so the court lacked authority to change the marital settlement agreement.

The parties entered into a Consent Final Judgment which, in pertinent part, required the Husband to pay to the Wife a total of $65,470 in cash and to also transfer to the Wife 50% of the shares of an Oppenheimer Mutual Fund. The Husband was required to do so by August 1st. Prior to the deadline, the Husband sent the Wife two checks totaling $24,700 and $24,327, thus leaving a balance owed of $16,443 as to the cash payment. On July 31st, the Husband sent a letter authorizing his broker to transfer 100% of the shares in the mutual fund to the Wife. At the time, the Fund had a value of $29,477.84. In other words, the Husband was attempting to apply the cash value of his 50% of the Fund ($14,738.92) toward the outstanding balance due on the required cash payment. Before he authorized the transfer of the Fund, the Husband had advised his counsel that he did not have enough cash to pay the $16,443 owed to the Wife. An exchange of emails then took place between the parties' counsel. The Husband's attorney asked the Wife's attorney if she would accept stock from the Fund toward the outstanding balance and the Wife's attorney replied that it did not matter how the Wife got her money "as long as she got all of it." On August 1st, the Wife wrote to the broker of the Fund accepting only her 50% of the Fund. Since the two authorization letters did not match, the broker did not transfer any shares of the Fund to the Wife. The Wife then filed an enforcement motion which the trial court denied, finding that the Wife could have accepted the Husband's offer to transfer the entire Fund to her. The District Court reversed:

1. "A property settlement agreement that has been incorporated into a final judgment of dissolution of marriage is non-modifiable, regardless of either party's financial position."

2. "Here, the property settlement agreement was incorporated into the Final Judgment. Because the Final Judgment did not contain a reservation of jurisdiction, the trial court lacked authority to change the terms of contract the parties had agreed to and the court had adopted."

Can a marital settlement agreement be enforced by a spouse's estate?

In the case of Rachid v. Perez, 26 So.3d 70 (Fla. 3rd DCA 2010) the Court enforced a settlement agreement between a wife and her dead husband's estate regarding the divorce that was pending when the husband died.

The husband and wife were married in 1978 and entered into a prenuptial agreement which provided that the past, present and future property of each spouse would remain the separate property of the respective spouse. In 2006 the husband died while divorce proceedings were pending. The wife sought an elective share of the estate along with other property. The trial court ordered mediation, the parties settled the case and the trial court approved the agreement. When the wife later failed to comply with the terms of the agreement, the personal representative of the estate moved to enforce the settlement. The wife appeared at the hearing and testified that she wanted more time to consult with an attorney and to investigate the settlement and the prenuptial agreement. The court granted the motion to enforce. The wife did not appeal. Instead, she retained new counsel who filed an emergency motion to stay the proceedings, a motion for rehearing and a motion to set aside the order of enforcement. The motions were denied and the wife appealed, seeking rescission of the settlement agreement. The District Court held:

1. "Because her appeal is directed to the order denying her motion for rehearing and a denial of her motion to set aside the order granting the motion to enforce the mediated settlement, the standard of review is gross abuse of discretion."

2. "We additionally note that there is a more stringent standard of review, however, when the final judgment to be vacated follows a mediated settlement agreement."

What happens to a divorce settlement when a business fails?

In the case of Mistretta v. Mistretta, 31 So.3d 206 (Fla. 1st DCA 2010), the trial court used October 31, 2007 as the date of valuation for the final judgment which was entered on August 25, 2008. The trial court awarded of the parties' principle asset, Jerry's Cajun Café and Market, Inc., to the husband, determining the value on that date to be $845,000, and ordered the husband to make a cash equalizing payment to the wife. The husband sought rehearing, conceding that the former wife established the value of the corporate entity by competent, substantial evidence and did not request an opportunity to present additional evidence or seek a different valuation date. Before the rehearing motion was heard, the husband filed an amended rehearing motion (in March, 2009) in which he claimed that "newly discovered evidence" showed that the 2007 economic recession had caused his business to sustain a net loss, warranting a new trial. On April 6, 2009 the trial court entered an order granting husband's motion for rehearing. The District Court reversed:

1. "Rehearing or new trial based on newly discovered evidence 'is warranted only where (1) it appears that the evidence is such that it will probably change the result if a new trial is granted, (2) the evidence has been discovered since the trial, (3) the evidence could not have been discovered before the trial by the exercise of due diligence, (4) the evidence is material to the issue, and (5) the evidence is not merely cumulative or impeaching….' Importantly, the allegedly 'newly discovered evidence' cannot simply show some change in circumstances since the trial."

2. "In the present case, the alleged 'newly discovered evidence' - evidence of an economic recession that began in December of 2007, months or weeks after the valuation date, and operating results for the year 2008 - tends to prove a change in circumstances occurring after the October 31, 2007, date of valuation, and relates, at least in part, to events that transpired after the trial."

3.  Economic recessions, like other vagaries in the business cycle, are contingencies appraisers must take into account in valuing a business."

4. "The witnesses who appraised the business by assigning it a value as of October 31, 2007, made assumptions about the business's prospects then, doubtless informed by the actual experience between October 31, 2007, and mid-March of 2008, when they testified on the question. On August 25, 2008, when final judgment was entered, economic conditions had presumably changed again, and it is certainly true that the parties' experts might not have predicted the precise economic conditions on April 6, 2009, the day the order under review was entered, or, for that matter, the reported improvements in economic conditions since. But a cloudy crystal ball is no basis for a new trial."

What is required to reduce alimony?

In the case of Wilson v. Wilson, 37 So.3d 877 (Fla. 2nd DCA 2010), the

TRIAL COURT DID NOT ABUSE DISCRETION IN REDUCING ALIMONY AWARD WHERE HUSBAND'S INCOME DECREASED AND WHERE WIFE NO LONGER HAD A NEED FOR THE ORIGINAL AMOUNT OF ALIMONY AWARDED. 

The Final Judgment awarded $11,000/month in alimony to the Wife. After a series of employees quit, the Husband was left to man his business alone and shortly thereafter, the Husband sold the practice to Veterinary Clinics of America. As a result, the Husband's income was reduced as he began working on a commission-only basis. The trial court found that the Husband's decision to sell was prudent and necessary and that the Wife's need was not as high as originally calculated. As such, the trial court granted the requested downward modification and the District Court affirmed: 

1. "Generally, to justify an alimony modification, the moving party must establish: (1) a substantial change in circumstances; (2) the change was not contemplated at the time of the final judgment of dissolution; and (3) the change is sufficient, material, permanent, and involuntary."

2. "The record supports the trial court's conclusion that business exigencies prompted the sale, the consideration received was reasonable, the sale enabled the Former Husband to continue working as a veterinarian until retirement age, and the sale proceeds ensured long-term security for both the Former Wife and the Former Husband."

3. "Although the Former Husband did not retire, we observe that involuntariness of income loss may no longer be a bright-line requirement for alimony modification . . . . Here, the trial court's finding that the Former Husband's decision to sell his practice was "prudent" satisfies the "reasonable" standard of Pimm and Rahn concerning that voluntary loss of income."

4. "The trial court did not err in finding a number of the items [contained in the wife's financial affidavit] unnecessary and concluding that the former Wife did not need alimony of $11,000 per month."

What is required to modify alimony?

In the case of Castleberry v. Castleberry, 29 So.3d 1207 (Fla. 1st DCA 2010) the trial court abused was wrong when it modified alimony to award more than nominal alimony to a Former Wife who now earns more than the Former Husband.  It is important to look at the current financial condition of the parties when presenting a modification case to a judge.

    The Husband appealed from an order that reduced but did not terminate his alimony obligation even though evidence demonstrated that Wife earned more income than he. The District Court held: "Because the undisputed evidence in the record is that… former wife, now earns more income that the former husband and there is no justification in the record for a continued alimony award under the circumstances, we agree with the former husband that the trial court abused its discretion in awarding more than a nominal amount of alimony."

Castleberry v. Castleberry, 29 So.3d 1207 (Fla. 1st DCA 2010)

    The Husband appealed from an order that reduced but did not terminate his alimony obligation even though evidence demonstrated that Wife earned more income than he. The District Court held: "Because the undisputed evidence in the record is that… former wife, now earns more income that the former husband and there is no justification in the record for a continued alimony award under the circumstances, we agree with the former husband that the trial court abused its discretion in awarding more than a nominal amount of alimony."

Castleberry v. Castleberry, 29 So.3d 1207 (Fla. 1st DCA 2010)

Can Florida courts enforce a Canadian divorce decree?

Deegan v. Taylor, 28 So.3d 227 (Fla. 2nd DCA 2010), the trial court enforced the Canadian divorce degree despite subsequent litigation.

WHERE CANADIAN DIVORCE DECREE AWARDED ALIMONY TO WIFE AND PARTIES RESOLVED A SUBSEQUENT ENFORCEMENT ACTION THROUGH A SETTLEMENT AGREEMENT WHICH PROVIDED FOR PREVAILING PARTY ATTORNEY'S FEES IN ANY FUTURE ENFORCEMENT ACTION, CANADIAN COURT'S SUBSEQUENT GRANT OF ANNULMENT BUT DETERMINATION THAT BECAUSE OF THE PARTIES' SIX-YEAR PUTATIVE MARRIAGE, THE PARTIES "SHALL BENEFIT FROM THE EFFECT OF THE JUDGMENT OF DIVORCE," TRIAL COURT ERRED IN DENYING WIFE ATTORNEY'S FEES WHEN IT FOUND HUSBAND IN CONTEMPT FOR NON-PAYMENT OF ALIMONY. 

The trial court found the former husband in contempt for non-payment of alimony, set a purge amount, and entered a money judgment in the former wife's favor for the arrears. The trial court, however, denied former wife's request for prevailing party attorney's fees, reasoning the provision entitling her to prevailing party attorney's fees in the parties' 2004 settlement agreement did not apply because it had been based on the premise of a valid marriage. The District Court reversed:

1. "The request for fees does not require us to explore the equitable principles apparently at play in [an earlier case]. Rather, the real issue is the deference owed to the Canadian decree."

2. "In handling [the Wife's] motion for contempt and enforcement, the trial court was called upon to enforce a domesticated Canadian decree that specifically retained all accessory measures, despite the grant of annulment. Accordingly, [the Wife] is entitled to prevailing party attorney's fees as an accessory measure that survived the annulment of her marriage to [the Husband]."

Who pays for transfer of property in a settlement agreement?

In the case of Seawell v. Hargarten, 28 So.3d 152 (Fla. 1st DCA 2010), the court held that the spouse in possession, or control of property is responsible for any transfer required by a settlement agreement.

The parties entered into a Consent Final Judgment which, in pertinent part, required the Husband to pay to the Wife a total of $65,470 in cash and to also transfer to the Wife 50% of the shares of an Oppenheimer Mutual Fund. The Husband was required to do so by August 1st. Prior to the deadline, the Husband sent the Wife two checks totaling $24,700 and $24,327, thus leaving a balance owed of $16,443 as to the cash payment. On July 31st, the Husband sent a letter authorizing his broker to transfer 100% of the shares in the mutual fund to the Wife. At the time, the Fund had a value of $29,477.84. In other words, the Husband was attempting to apply the cash value of his 50% of the Fund ($14,738.92) toward the outstanding balance due on the required cash payment. Before he authorized the transfer of the Fund, the Husband had advised his counsel that he did not have enough cash to pay the $16,443 owed to the Wife. An exchange of emails then took place between the parties' counsel. The Husband's attorney asked the Wife's attorney if she would accept stock from the Fund toward the outstanding balance and the Wife's attorney replied that it did not matter how the Wife got her money "as long as she got all of it." On August 1st, the Wife wrote to the broker of the Fund accepting only her 50% of the Fund. Since the two authorization letters did not match, the broker did not transfer any shares of the Fund to the Wife. The Wife then filed an enforcement motion which the trial court denied, finding that the Wife could have accepted the Husband's offer to transfer the entire Fund to her. The District Court reversed: 

1. "First, the authorization letter sent by the Husband, unlike the one sent by the Wife, did not comply with the terms of the Final Judgment. Second, the Husband made no further effort to assure the Fund assets were transferred."

2. "Clearly, to avoid responsibility, an individual must be able to demonstrate that the failure of the transfer to occur was due to factors beyond their control. In essence, the Husband would be able to show, that in spite of his efforts, it was impossible to transfer the assets. Certainly, this is not the case here."

Can a marital settlement agreement be modified?

In the case of Seawell v. Hargarten, 28 So.3d 152 (Fla. 1st DCA 2010) the trial court held that because the final judgment didn't contain a reservation of jurisdiction clause, the settlement agreement couldn't be changed.

The parties entered into a Consent Final Judgment which, in pertinent part, required the Husband to pay to the Wife a total of $65,470 in cash and to also transfer to the Wife 50% of the shares of an Oppenheimer Mutual Fund. The Husband was required to do so by August 1st. Prior to the deadline, the Husband sent the Wife two checks totaling $24,700 and $24,327, thus leaving a balance owed of $16,443 as to the cash payment. On July 31st, the Husband sent a letter authorizing his broker to transfer 100% of the shares in the mutual fund to the Wife. At the time, the Fund had a value of $29,477.84. In other words, the Husband was attempting to apply the cash value of his 50% of the Fund ($14,738.92) toward the outstanding balance due on the required cash payment. Before he authorized the transfer of the Fund, the Husband had advised his counsel that he did not have enough cash to pay the $16,443 owed to the Wife. An exchange of emails then took place between the parties' counsel. The Husband's attorney asked the Wife's attorney if she would accept stock from the Fund toward the outstanding balance and the Wife's attorney replied that it did not matter how the Wife got her money "as long as she got all of it." On August 1st, the Wife wrote to the broker of the Fund accepting only her 50% of the Fund. Since the two authorization letters did not match, the broker did not transfer any shares of the Fund to the Wife. The Wife then filed an enforcement motion which the trial court denied, finding that the Wife could have accepted the Husband's offer to transfer the entire Fund to her. The District Court reversed: 

1. "A property settlement agreement that has been incorporated into a final judgment of dissolution of marriage is non-modifiable, regardless of either party's financial position."

2. "Here, the property settlement agreement was incorporated into the Final Judgment. Because the Final Judgment did not contain a reservation of jurisdiction, the trial court lacked authority to change the terms of contract the parties had agreed to and the court had adopted."

Is Florida the right jurisdiction to file in?

TRIAL COURT WAS CORRECT IN FINDING THAT IT HAD JURISDICTION TO MAKE A CUSTODY DETERMINATION UNDER THE UCCJEA WHERE NO OTHER STATE HAD JURISDICTION. 

The Father appealed from a final judgment of paternity which determined that the Florida courts had subject matter jurisdiction over the parties' custody dispute concerning the parties' eight-year-old daughter; granted custody of the child to the mother, ordered monthly child support; and placed the burden of visitation costs entirely on the father. With regard to the jurisdictional question, the District Court held:

1. "A Florida court has jurisdiction to make an initial child custody determination if Florida is the home state of the child on the date of the commencement of the proceeding. Home state is defined in relevant part as the state in which a child has lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding."

2. "The UCCJEA gives jurisdictional priority to the child's home state. However, the UCCJEA grants an exception to the home state jurisdictional requirement when 'a court of another state does not have jurisdiction' Therefore, under the UCCJEA, even if Florida is not the child's home state, Florida may exercise subject matter jurisdiction over a child custody matter if another state does not have jurisdiction"

"On the date that the paternity action was commenced in this case, Florida was not the 'home state' of the child because the child had not lived in Florida for six consecutive months prior to the commencement of the paternity action…. However, no other state had jurisdiction since the mother and child had lived in several states in the six months prior to their arrival in Florida and the commencement of the paternity action."

4. "As a result, because no court of any other state would have had jurisdiction under section 61.514, the Florida trial court had jurisdiction to make an initial custody determination."

Hindle v. Fuith, 33 So.3d 782 (Fla. 5th DCA 2010)

A child must live in Florida for 6 months before a divorce can be filed.

ERROR TO MAKE AN INITIAL CHILD CUSTODY DETERMINATION WHEN FLORIDA WAS NOT THE CHILD'S HOME STATE.

The Wife appealed from a portion of the trial court's final judgment of dissolution. It is undisputed that the child lived with her parents in North Carolina and then, after their separation, with her mother in Wisconsin, during the six months before the former husband commenced the dissolution proceedings in Duval County, where he was a legal resident. The District Court held: "[U]under section 61.514, Florida Statutes (2008), of the Uniform Child Custody Jurisdiction and Enforcement Act, Florida was not the child's home state and the circuit court did not have jurisdiction to make an initial child custody determination."

Collier v. Collier, 29 So.3d 437 (Fla. 1st DCA 2010).

A judge could hold a person in contempt of court for lying on the affidavit.

ERROR TO MAKE AN INITIAL CHILD CUSTODY DETERMINATION WHEN FLORIDA WAS NOT THE CHILD'S HOME STATE.

The Wife appealed from a portion of the trial court's final judgment of dissolution. It is undisputed that the child lived with her parents in North Carolina and then, after their separation, with her mother in Wisconsin, during the six months before the former husband commenced the dissolution proceedings in Duval County, where he was a legal resident. The District Court held: "[U]under section 61.514, Florida Statutes (2008), of the Uniform Child Custody Jurisdiction and Enforcement Act, Florida was not the child's home state and the circuit court did not have jurisdiction to make an initial child custody determination."

Collier v. Collier, 29 So.3d 437 (Fla. 1st DCA 2010)

$65 million offered as a marriage bounty!

http://worldnews.nbcnews.com/_news/2012/09/26/14114021-hong-kong-playboy-tycoon-offers-65-million-to-find-husband-for-lesbian-daughter?lite

Hong Kong 'playboy tycoon' offers $65 million to find husband for lesbian daughter

By NBC News staff

Hong Kong property and shipping magnate Cecil Chao Sze-tsung announced he would offer HK$500 million (about $65 million) to the man who can woo and marry his 33-year-old daughter, Gigi Chao, the South China Morning Post reported.

"It is an inducement to attract someone who has the talent but not the capital to start his own business," Chao told the BBC.

"I don't mind whether he is rich or poor. The important thing is that he is generous and kind-hearted," he added. "Gigi is a very good woman with both talents and looks. She is devoted to her parents, is generous and does volunteer work."

According to the Post report, the announcement came just one week after Chao's daughter revealed she had married her female partner of seven years, Sean Eav, in France earlier this year.  The tycoon, 76, told the Post the reports of his daughter being married were "false." According to the article, same-sex marriage is not legally recognized in Hong Kong, although civil unions are performed in France.  Chao, whom the Post describes as "Hong Kong's pre-eminent playboy tycoon," told the BBC that Gigi Chao was single and needed a "good husband." Chao has never married himself, and he once claimed to have slept with 10,000 women, the South China Morning Post reported.  According to the BBC, Chao said he wouldn't force Gigi to marry a man against her will.  Gigi Chao runs Haut Monde Talent, a modeling and public relations company. She is the first of three children that Chao had with different women, according to the Global Post.

*          *          *          *

My opinion of this story is that the father will totally alienate his daughter from him.  Can you imagine how many men are scheming at this point?  If she never trusted men before, she surely won't now!  If she ever did marry a man, how long until a divorce?

When does the judge require the Husband to pay Wife's attorney's fees

In the case of Baker v. Baker, 35 So.3d 76 (Fla. 2nd DCA 2010), the Court stated the trial court committed error because there was a lack of evidence supporting the temporary attorney fee.  The Husband appealed from the trial court's order awarding temporary attorney's fees to the Wife. There was sparse testimony regarding fees at the hearing below. The Wife testified that she borrowed $4,500 to retain counsel and that $1,800 was spent on four days of depositions. No other evidence was presented regarding the Wife's attorney's hourly rate, or the number of hours expended on the case. The trial court found that the Wife had the need, and the Husband had the ability to pay $7,500. The husband challenged the lack of evidence to support the amount awarded and challenged the need for a remand, arguing that the Wife had failed to produce evidence to support her claim for temporary relief. The District Court held:

1. "To obtain an award of temporary attorney's fees in a dissolution of marriage proceeding, '[t]he party seeking fees must prove with evidence the reasonableness and the necessity of the fee sought.'"

2. "Here, the trial court did not make factual findings regarding the reasonableness of the attorney's fees and, in fact, could not do so because no evidence was presented to support findings on a reasonable hourly rate. Further, limited information was presented as to the time expended or to be expended."

3. "Because the record does not contain competent, substantial evidence to support a determination on the reasonableness of the fees awarded, we reverse the appealed order to the extent that it awarded $7500 in temporary attorney's fees."

4. "[A] temporary award does not create vested rights, and the trial court may modify or vacate a temporary award at any time during the litigation. We thus remand for further proceedings for the trial court to determine a reasonable temporary fee award and for the trial court to make findings to support that award."

Who has to pay the transfer cost of a retirement fund?

In the case of Seawell v. Hargarten, 28 So.3d 152 (Fla. 1st DCA 2010) the Court ruled that it is the responsibility of the spouse in possession of the asset to effectuate the transfer.

            The parties entered into a Consent Final Judgment which, in pertinent part, required the Husband to pay to the Wife a total of $65,470 in cash and to also transfer to the Wife 50% of the shares of an Oppenheimer Mutual Fund. The Husband was required to do so by August 1st. Prior to the deadline, the Husband sent the Wife two checks totaling $24,700 and $24,327, thus leaving a balance owed of $16,443 as to the cash payment. On July 31st, the Husband sent a letter authorizing his broker to transfer 100% of the shares in the mutual fund to the Wife. At the time, the Fund had a value of $29,477.84. In other words, the Husband was attempting to apply the cash value of his 50% of the Fund ($14,738.92) toward the outstanding balance due on the required cash payment. Before he authorized the transfer of the Fund, the Husband had advised his counsel that he did not have enough cash to pay the $16,443 owed to the Wife. An exchange of emails then took place between the parties' counsel. The Husband's attorney asked the Wife's attorney if she would accept stock from the Fund toward the outstanding balance and the Wife's attorney replied that it did not matter how the Wife got her money "as long as she got all of it." On August 1st, the Wife wrote to the broker of the Fund accepting only her 50% of the Fund. Since the two authorization letters did not match, the broker did not transfer any shares of the Fund to the Wife. The Wife then filed an enforcement motion which the trial court denied, finding that the Wife could have accepted the Husband's offer to transfer the entire Fund to her. The District Court reversed:

1. "First, the authorization letter sent by the Husband, unlike the one sent by the Wife, did not comply with the terms of the Final Judgment. Second, the Husband made no further effort to assure the Fund assets were transferred."

2. "Clearly, to avoid responsibility, an individual must be able to demonstrate that the failure of the transfer to occur was due to factors beyond their control. In essence, the Husband would be able to show, that in spite of his efforts, it was impossible to transfer the assets. Certainly, this is not the case here."

Is a pre-nup valid if signed 10 days before a marriage?

In the case of Gordon v. Gordon, 25 So.3d 615 (Fla. 4th DCA 2009) the parties entered into a prenuptial agreement ten days prior to their marriage. Neither party had legal counsel but had discussed the agreement for several months. The wife was "an individual with a high level of education and business acumen who, having twice married, understood the significance of the document she was about to sign and chose not to seek the advice of a lawyer." The agreement essentially provided that each party's property at the time of the marriage would remain his or her separate property.  In his financial disclosure, the husband listed various pension accounts but did not specify the pension he would receive from his employer. The court affirmed:

1. "We first address whether the agreement was reached under duress, coercion or overreaching. The record before us presents the former wife as an individual with a high level of education and business acumen who, having twice married, understood the significance of the document she was about to sign and chose not to seek the advice of a lawyer. And, while the parties disagreed over the amount of time the former wife had to contemplate the agreement, we hold that a trial court does not abuse its discretion by declaring that a period of ten days prior to the marriage is sufficient time for one to exercise the opportunity to review the agreement, and, if one so chooses, to seek the advice of legal counsel." 

2. "We next address whether the former husband's failure to specifically disclose his airline pension plan constitutes fraud, deceit, or misrepresentation. The agreement specifically provided that each party shall retain as separate property all retirement accounts and property listed on the attached schedules."

3. "Additionally, the agreement included a provision specifically addressing pension benefits under its own section heading. The former husband's schedule of property referenced "Retirement Plans (Keogh, 401(k), etc)" and specifically listed the former husband's 401(k) plan through his employer; however, no mention was made of the airline pension plan of which the former husband was a beneficiary."

When can lump sum alimony be awarded?

In the case of Buoniconti v. Buoniconti, 36 So.3d 154 (Fla. 2nd DCA 2010):

TRIAL COURT'S AWARD OF PERMANENT ALIMONY BY WAY OF A LUMP SUM AWARD TO THE WIFE WAS NOT "UNFAIR" SIMPLY BECAUSE LUMP SUM ALIMONY IS A VESTED RIGHT THAT WOULD SURVIVE REMARRIAGE.

Prior to the dissolution hearing, husband and wife resolved the majority of issues between them. The trial court was asked to consider only the wife's claim for permanent and retroactive alimony and her claim that the liquid marital assets should be distributed unequally due to the husband's dissipation of certain marital assets during the marriage. At the close of the dissolution proceedings, the trial court awarded the wife permanent alimony payable as lump sum as well as retroactive alimony. It also found that the husband had dissipated marital assets, and it charged those dissipated assets to the Husband in its equitable distribution scheme. The husband first contended that the trial court abused its discretion by awarding the wife $261,240 in permanent alimony payable as a lump sum. The argument has two components: first, whether the wife was entitled to permanent alimony, payable as a lump sum; and second, whether the amount of the award was supported by evidence. With regard to the Husband's argument that the award was "unfair," the District Court held:

1. "At oral argument, counsel for the Husband argued that it was 'unfair' to award permanent alimony as a lump sum because the Wife would get to keep the entire award even if she chooses to remarry or cohabit." 

2. "We reject this 'unfairness' argument for three reasons. First, there was no evidence that the Wife sought permanent alimony payable as a lump sum because she was planning to remarry or cohabit…. Second, there is nothing 'unfair' about a court of equity exercising its discretion to select from the range of available options, provided that the option chosen is supported by the evidence and can withstand the applicable standard of review. Third, the Husband cannot be heard to complain simply because his chosen financial strategy did not produce the desired result. The Husband's course of conduct forced the trial court to choose between awarding the Wife nominal permanent periodic alimony or a reasonable amount of permanent alimony payable as a lump sum. The fact that the Husband's apparent strategy to avoid paying permanent alimony backfired is the risk he took when he chose that course of action. Absent legal error, a party's failed strategy is not rectifiable on appeal."

When computing alimony do you use "reported" IRS income?

In the case of McQuaig v. McQuaig, 36 So.3d 801 (Fla. 1st DCA 2010), the court found:  

TRIAL COURT DID NOT ERR IN REFUSING TO REDUCE HUSBAND'S INCOME FOR CERTAIN CLAIMED "BUSINESS EXPENSES"; THE FACT THAT HUSBAND CAN DEDUCT EXPENSES FOR TAX PURPOSES DOES NOT MAKE THEM "ORDINARY AND NECESSARY" FOR CHAPTER 61 INCOME CALCULATION PURPOSES.

The Husband sought a modification of alimony based on his asserted decrease in income. The court ultimately reduced the alimony from $8,000 per month to $5,000 (on a temporary basis for two years) and further ordered the Husband to pay $8,500 toward the $17,200 attorney's fees incurred by the Wife during the modification proceedings. On appeal, the Husband contended that the trial court erred by failing to deduct business expenses when computing his income, specifically, that the trial court was required to deduct his "ordinary and necessary business expenses" in calculating his gross income. The District Court held:

1. "In 2008, the Former Husband earned $119,949 from his distributorship…. On his 2008 tax return, he deducted $30,028 in business expenses for an unadjusted gross taxable income of $89,921. The deducted expenses included: car and truck expenses; office expenses; repairs and maintenance; travel; deductible meals and entertainment; and 'other expenses' (telephone, internet/phone/fax; software; passport; clothing; freight; [publications]; entertainment; parking)." 

2. "Citing section 61.30, Florida Statutes, and cases interpreting that statute, the Former Husband argues the trial court was required to deduct his 'ordinary and necessary' business expenses in calculating his gross income. The statute he relies on governs child support determinations and provides that in determining a parent's monthly income for that purpose, gross income includes 'business income,' which in turn 'means gross receipts minus ordinary and necessary expenses required to produce income.'"

3. "We are not persuaded section 61.30 should be applied in this case where the relevant statute is section 61.08 governing alimony awards, and that statute speaks only in terms of 'financial resources' and 'all sources of income.' But even assuming the definition of 'business income' in section 61.30 is properly applied here, the trial court did not act unreasonably in declining to accept the Former Husband's representations. Except for a $500 monthly car allowance the Former Husband received as a sales representative, there is no evidence in the record showing he incurs expenses in selling surgical equipment as a distributor that differ from those he incurred as a salesman or that previously were paid or reimbursed by his former employer. That the Former Husband can now deduct those expenses for tax purposes does not make them ipso facto 'ordinary and necessary' for Chapter 61 income calculation purposes and he has presented no authority - nor have we found any - to support such a proposition."

4. "Absent such authority or any competent, substantial evidence of what expenses are 'ordinary and necessary' to running the Former Husband's distributorship, the trial court did not abuse its discretion in finding that his 2008 gross income was $120,000."

What is required in a Divorce decree for an order of life insurance?

In the case of Rashid v. Rashid, 35 So.3d 992 (Fla. 5th DCA 2010) the court found:

ERROR TO REQUIRE HUSBAND TO OBTAIN LIFE INSURANCE TO SECURE ALIMONY AND CHILD SUPPORT OBLIGATIONS WITHOUT FINDINGS REGARDING AVAILABILITY AND COST OF INSURANCE, ABILITY TO PAY, OR APPROPRIATE CIRCUMSTANCES TO JUSTIFY THE REQUIREMENT.

The Wife filed a petition to end her 22-year marriage and requested, among other things, alimony, child support, attorney's fees, and shared parental responsibility. The lower court granted attorney's fees and awarded the wife alimony and child support; requiring husband to secure those obligations with life insurance. The court further awarded the wife, sole parental custody, an award well beyond the shared parental responsibility actually requested by the Wife. As to the insurance requirements, the District Court held:

1. "The courts are statutorily authorized to order the obligor to maintain life insurance to protect alimony awards and child support allegations… when "appropriate circumstances" exist to justify the award."

2. "Appropriate circumstances may include the dire impact that the sudden death of the obligated party would have on the receiving party."

3. "In order this protection, the court should consider the 'availability and costs of such insurance and the financial impact it will have on the former husband…. The final judgment should include appropriate findings regarding the availability and cost of insurance, the ability of the obligor to pay, and the appropriate circumstances that justify the insurance requirement."

4. "Here, the trial court made no findings to support the order of life insurance, and Wife concedes the error." 

It is always a good idea to get life insurance to secure payments of alimony and child support.

Can a judge order liens on pre-marital property to secure payments?

In the case of Mackoul v. Mackoul, 32 So.3d 741 (Fla. 1st DCA 2010) the court stated: 

PROPERTY TO SECURE ALIMONY AND CHILD SUPPORT, COURT ERRED IN FAILING TO MAKE SPECIFIC FINDINGS CONCERNING WHETHER THE LIEN ONLY SECURES ARREARAGES AT THE TIME OF HUSBAND'S DEATH OR IF IT WAS ALSO INTENDED TO SECURE FUTURE PAYMENTS IN ORDER TO MINIMIZE FUTURE ECONOMIC HARM TO THE FAMILY. 

The Husband appealed from a final judgment of dissolution of marriage which imposed a lien on his premarital real property to secure the payment of child support and permanent periodic alimony, because the order did not specify whether the lien was to secure arrearages at the time of his death or if it is also intended to secure future payments to minimize economic harm to the surviving family. The District Court held:

1. "Here, the record supports the trial court's imposition of a lien to secure the payment of alimony and child support. The Former Husband is 77 years old and in poor health. The Former Husband is uninsurable but has significant unencumbered assets that he uses to support himself. The Former Wife would potentially be left in dire straits after the Former Husband's death because she is not capable of full-time employment. The Former Wife has significant medical history resulting in some medical disability, and both parties agreed that the Former Wife needs to be home on afternoons and weekends to care for their youngest child, who has been diagnosed with a form of autism and cannot be left alone. The child also may remain dependant even after he reaches majority."

2. "Although the trial court did not abuse discretion in imposing a lien, the trial court failed to make any specific findings concerning whether, in the context of alimony, the lien only secures arrearages at the time of the Former Husband's death or if it was also intended to secure future payments in order to minimize economic harm to the family."

3. "Without such findings we are unable to determine whether the amount of the lien was appropriately tailored to the obligation being secured."

It is always a good idea to have a lien to secure future payments if there are available assets. 

How does a judge compute income for a self-employed person?

In the case of Sallaberry v. Sallaberry, 27 So.3d 234 (Fla. 4th DCA 2010), the court overruled the trial court's basis for imputing income.  The court stated:  FINDING THAT HUSBAND , WHO OWNED A COPY MACHINE REPAIR BUSINESS , COULD BILL HIS CLIENT TWENTY HOURS PER WEEK AMOUNTED TO SPECULATION, AND REVIEW OF HUSBAND'S BUSINESS ACCOUNTS BY WIFE'S FORENSIC ACCOUNTANT FAILED TO CONSIDER THE HUSBAND'S BUSINESS EXPENSES.

At trial, the husband, who owns a copy machine repair business, stated he could bill an average of only one hour per day (at $95 an hour) to his clients. The trial court found that the husband could bill his clients twenty hours per week. On appeal, the Fourth District found the trial court's ruling amount to speculation and the account's review of the husband's business accounts failed to consider business expenses.

1. "The court believed the husband could bill at least twenty hours per week, raising his gross corporate revenues to roughly $95,000 per year."

2. "The court then subtracted $15,000 to be retained by the corporation to meet expenses, leaving $80,000 in imputed gross income. This calculation was supported by the opinion of the wife's forensic accountant."

3. "Nevertheless, the trial court's finding that the husband could bill his clients twenty hours per week amounts to speculation, and the accountant's review of the husband's business bank accounts failed to consider the husband's business expenses."

4. "The only competent evidence regarding the husband's income was his ability to fund household expenses amounting to $5,000 per month. A spouse's ability to maintain a standard of living at a certain financial level is probative evidence of the spouse's income."

5. "Nevertheless, a trial court may not impute income to a party based solely on past earning power because past income may not reflect a present ability to pay."

How is income imputed to a spouse that's not working?

In the case of Schmachtenberg v. Schmachtenberg, 34 So.3d 28 (Fla. 3rd DCA 2010), the appellate court gives us guideance on how to correctly impute income to a wife that has raised children and supported her husband during a marriage:

            The trial court, when determining the amount of alimony that the Husband should pay in a modification case, imputed $18,000 in income to the Wife. This was the same amount that the parties agreed to impute to her in 2002 in their Marital Settlement Agreement. On appeal, the District Court held that because the "projected and estimated" income imputed to the Wife in the marital settlement agreement did not come to fruition the amount should not have been imputed to her:

1. "There is no dispute that [the Wife] is currently unemployed and has engaged in no meaningful employment since the parties' divorce in 2002. The undisputed record is, therefore, that her current income in $0. Rather than using that number as a basis for determining need and thus the amount of alimony [the Husband] should currently pay, the court below imputed $18,000 in income to [the Wife], which is the amount the parties agreed to impute to her in 2002 when they executed their marital settlement agreement ."

2. "The record in this case is that while [the Wife] has both a college degree and a real estate license, she has not held meaningful full-time employment since the 1970's. The last meaningful part-time employment she enjoyed was in [the Husband's] law office where she assisted in real estate related work." 

3. "[The Wife] has sold only two properties as a real estate agent and has spent most of her time assisting the parties' disabled son. Other than this, there is no evidence that, now at age 58 and many years outside the workplace, [the Wife] is employable except as a real estate agent. As to this (or for that matter any other) line of work, there is no evidence whatsoever as to the current job market or as to the prevailing earnings level for such agents in the community where [the Wife] lives. Absent such evidence, income could not be imputed to her."

4. "The amount imputed to [the Wife] in the 2002 marital settlement agreement, as the agreement itself confirms, did not represent her actual income, but represented no more than an estimate of potential future earnings…. As we know, the 'projected and estimated' income imputed to [the Husband] in this agreement did not come to fruition; nor, as the record confirms, did [the Wife's]. This estimate should not, therefore, have been attributed to her now for the purpose of determining either alimony or child support."

Can a traditional yearly gift from grandparents be used in calculating child support?

In the case of Palumbo v. Butler, 26 So.3d 723 (Fla. 2nd DCA 2010), the appellate court ruled that is was :

ERROR TO INCLUDE IN HUSBAND'S INCOME FOR PURPOSE OF CALCULATING CHILD SUPPORT, ANTICIPATED ANNUAL FINANCIAL GIFTS WHICH HUSBAND'S MOTHER HAD HISTORICALLY MADE TO MINOR CHILDREN FOR THEIR EDUCATION. 

The trial judge added $22,000 per year to the husband's income to calculate his child support obligation. The court reasoned that these gifts were regular and would continue. The District Court reversed: 

1. "[The husband]…does not control his mother's largesse. His mother testified that she anticipated making future gifts, depending on the economy, her health, and her family needs."

2. "In past years, she gave the children's money directly to [the husband], earmarking it for school tuition. But, well before the final hearing, she began paying the school directly."

3. "On the record before us, [the wife] properly concedes that the anticipated gifts should not have been included with Mr. Butler's income." 

            The reasoning for this is that grandparents can change their mind at any time regarding their gifts.  They could have a financial emergency, medical emergency, or simply decide to spend some of their own money.  The parent paying child support would be caught in a "trap" requiring him to pay support from income he doesn't receive.  Hopefully, grandparents will help pay for schooling, but that is a personal choice that the courts can't get involved it.  If every case was micromanaged, the courts could not function in a efficient manner.

When the parents live in different states, who pays for the kid's travel?

In the case of Hindle v. Fuith, 33 So.3d 782 (Fla. 5th DCA 2010)  the court ruled:

TRIAL COURT ERRED IN ORDERING FATHER TO BEAR THE ENTIRE COST OF VISITATION; TRANSPORTATION EXPENSES SHOULD BE SHARED BY PARENTS IN ACCORDANCE WITH FINANCIAL MEANS; EXPENSE OF VISITATION IS A CHILD-REARING EXPENSE "LIKE ANY OTHER." 

The Father appealed from a final judgment of paternity which determined that the Florida courts had subject matter jurisdiction over the parties' custody dispute concerning the parties' eight-year-old daughter; granted custody of the child to the mother, ordered monthly child support; and placed the burden of visitation costs entirely on the father. With regard to the court's requirement that the Father bear all of the costs of visitation, the District Court held:

1. "The [parties'] child was born in the United Kingdom where the father resides and removed to Florida by the mother's unilateral decision. The trial court ruled that the father can only visit the child in Florida, thereby incurring substantial travel expenses to effectuate his visitation."

2. "The expense of visiting the child in Florida from the father's residence in the United Kingdom is a childrearing expense like any other. Child support guidelines provide that transportation expenses, like other childrearing costs, should be shared by the parents in accordance with their financial means.

What this case means is that when there are substantial travel expenses, each parent should share the cost of travel.  This is calculated on the child support guidelines and based on the income of each parent.  Both parents should be in a child's life and the court has recognized this.

Does my ex have to pay for private school for the kids?

The court ruled in Gelman v. Gelman, 24 So.3d 1281 (Fla. 4th DCA 2010) that it was :

ERROR TO REQUIRE HUSBAND TO PAY CHILDREN'S PRIVATE SCHOOL TUITION WHERE WIFE'S COUNTER-PETITION DID NOT CONTAIN REQUEST FOR TUITION, HUSBAND DID NOT AGREE TO PAY AND COURT DID NOT MAKE FINDINGS AS TO ABILITY TO PAY AND WHETHER SUCH EXPENSES WERE IN ACCORD WITH CUSTOMARY STANDARD OF LIVING AND IN THE CHILDREN'S BEST INTERESTS. 

The trial court directed the Former Husband to pay the minor children's private school tuition. The District Court reversed: 

1. "A court may order a non-custodial parent to pay for private educational expenses if it finds that the parent has the ability to pay for private school and the expenses are in accordance with the family's customary standard of living and are in the child's best interest."

2. "Former Husband contends that the trial court improperly ordered him to pay the children's private school tuition because Former Wife did not plead for the award and the trial court failed to make requisite findings of fact…."

3. "Former Wife's counter-petition did not contain a request for payment of private school tuition. Moreover, there is no record evidence establishing that Former Husband agreed to pay the tuition. Finally, the court did not make the requisite findings as to whether Former Husband has the ability to pay the tuition, and whether the private school expenses are in accordance with the family's customary standard of living and are in the children's best interest."

What is requird to hold spouse in contempt for not paying?

In the case of Aburos v. Aburos, 34 So.3d 131 (Fla. 3rd DCA 2010), the Court held there was no competent evidence that the Former Husband had the present ability to pay the purge condition.

The Husband was ordered to pay alimony of $1,700 per month and child support of $1,693 monthly as well as the $70,000 second mortgage on the former marital residence awarded to the Wife. In 2001, the Husband was held in contempt for failing to make the required payments, failing to attend a hearing, willfully fleeing the court's jurisdiction by moving to Israel and dissipating marital assets. The Husband was ordered to recover funds from an account he had improperly transferred to his sister.  In 2007, the Wife moved for contempt. Three hearings were held where the Husband testified that he worked at his sister's jewelry shop for approximately $2,000 per month and had access to the store's bank account (containing $25,000), although all transactions not considered "day-to-day" required the approval of his sister. The Wife testified that the Husband was a talented jewelry designer who used to make $100,000 per year and had the ability to earn more than his present income. The court found that the Husband had complete dominion over the operation of the store, including access to its bank account. The court issued a civil contempt order containing a purge provision in the amount of $25,000 and ordered that the husband be taken into custody. The District Court reversed:

"In the present case, the magistrate found the former husband's testimony not credible, but that does not excuse the requirement to identify an appropriate source of funds from which he could pay the purge amount."

Can income be imputed to a Former Spouse in a supplemental petition?

In the case of Schmachtenberg v. Schmachtenberg, 34 So.3d 28 (Fla. 3rd DCA 2010), the court stated on a modification action, income can't be imputed to the Former Wife based on an agreement from an eight year old agreement from the divorce.

The trial court, when determining the amount of alimony that the Husband should pay in a modification case, imputed $18,000 in income to the Wife. This was the same amount that the parties agreed to impute to her in 2002 in their Marital Settlement Agreement. On appeal, the District Court held that because the "projected and estimated" income imputed to the Wife in the marital settlement agreement did not come to fruition the amount should not have been imputed to her:

1. "There is no dispute that [the Wife] is currently unemployed and has engaged in no meaningful employment since the parties' divorce in 2002. The undisputed record is, therefore, that her current income in $0. Rather than using that number as a basis for determining need and thus the amount of alimony [the Husband] should currently pay, the court below imputed $18,000 in income to [the Wife], which is the amount the parties agreed to impute to her in 2002 when they executed their marital settlement agreement ."

            2. "The record in this case is that while [the Wife] has both a college degree and a real estate license, she has not held meaningful full-time employment since the 1970's. The last meaningful part-time employment she enjoyed was in [the Husband's] law office where she assisted in real estate related work."

3. "[The Wife] has sold only two properties as a real estate agent and has spent most of her time assisting the parties' disabled son. Other than this, there is no evidence that, now at age 58 and many years outside the workplace, [the Wife] is employable except as a real estate agent. As to this (or for that matter any other) line of work, there is no evidence whatsoever as to the current job market or as to the prevailing earnings level for such agents in the community where [the Wife] lives. Absent such evidence, income could not be imputed to her."

4. "The amount imputed to [the Wife] in the 2002 marital settlement agreement, as the agreement itself confirms, did not represent her actual income, but represented no more than an estimate of potential future earnings…. As we know, the 'projected and estimated' income imputed to [the Husband] in this agreement did not come to fruition; nor, as the record confirms, did [the Wife's]. This estimate should not, therefore, have been attributed to her now for the purpose of determining either alimony or child support."

Should you use marital money to pay down a non-maritla mortgage?

In the case of Valladares v. Junco-Valladares, 30 So.3d 519 (Fla. 3rd DCA 2010), the court ruled as follows:

BY AWARDING WIFE EQUALIZATION PAYMENT BASED ON PAY-DOWNS MADE ON MORTGAGES ON MARITAL HOME TITLED IN HUSBAND'S NAME AND ALSO CONSIDERING THE SAME PAY-DOWNS IN ITS RATIONALE TO AWARD WIFE LUMP SUM ALIMONY BASED ON MARITAL CONTRIBUTIONS SHE MADE TO A NON-MARITAL ASSET, COURT ESSENTIALLY "DOUBLE-DIPPED."

The trial court awarded the wife $1.25 million as a lump sum alimony award, based on the marital contributions she made to the husband's non-marital asset (the former marital residence), as well as the appreciation of those contributions. But, the trial court also awarded the wife $173,469 as an equitable distribution award based on the same contributions. The District Court reversed the equitable distribution award:

1. "The trial court considered the forensic accountant figures [as to mortgage pay-downs] in calculating an equitable distribution award of $173,469 to the wife. However, the trial court also considered those same figures in its rationale to award the wife $1.25 million as a lump sum alimony award, based on the marital contributions she made to the non-marital asset, as well as the appreciation of those contributions."

2. "At issue are the pay-downs on the three mortgages on the residence. Consequently, the equitable distribution award of $173,469 partially allows the wife to essentially double-dip from her contributions to this asset and is error."

3. "Therefore, the $174,469 equitable distribution award must be recalculated by eliminating the mortgage pay-downs from the calculation."

Can a Former Wife still get alimony if she makes more money?

In Castleberry v. Castleberry, 29 So.3d 1207 (Fla. 1st DCA 2010), the trial court said that an alimony award was not justified if the Former Wife makes money than the Former Husband.  However, the Court must have been suspicious of the Former Husband's ability to earn money after the case because it stated "nominal alimony" could be awarded.  This means if the trial court awarded $1.00 a month in alimony, it could be increased if the Former Husband decides to make more money after the case was over.  If the Court awarded "$0" in alimony, it couldn't later give alimony if the Husband made more money.   This case is important for "semi-retired" people that are trying to calculate a budget for retirement.  It is a bargaining chip in divorce cases to give more assets in the initial divorce if alimony can be waived.  Each case is different and you need a professional to advise you.

TRIAL COURT ABUSED ITS DISCRETION IN ALIMONY MODIFICATION CASE TO AWARD MORE THAN NOMINAL ALIMONY TO WIFE WHO NOW EARNS MORE THAN HUSBAND.

The Husband appealed from an order that reduced but did not terminate his alimony obligation even though evidence demonstrated that Wife earned more income than he. The District Court held: "Because the undisputed evidence in the record is that… former wife, now earns more income that the former husband and there is no justification in the record for a continued alimony award under the circumstances, we agree with the former husband that the trial court abused its discretion in awarding more than a nominal amount of alimony."

Castleberry v. Castleberry, 29 So.3d 1207 (Fla. 1st DCA 2010)

Can I get alimony if my husband stops working during the divorce?

In the case of Buoniconti v. Buoniconti, 36 So.3d 154 (Fla. 2nd DCA 2010), the court awarded lump sum alimony when the Husband "retired" and was only making a minimal amount of money at the time of the divorce.  Prior to the dissolution hearing, husband and wife resolved the majority of issues between them. The trial court was asked to consider only the wife's claim for permanent and retroactive alimony and her claim that the liquid marital assets should be distributed unequally due to the husband's dissipation of certain marital assets during the marriage.  

The trial court awarded the wife permanent alimony payable as lump sum as well as retroactive alimony. It also found that the husband had dissipated marital assets, and it charged those dissipated assets to the Husband in its equitable distribution scheme. The husband first contended that the trial court abused its discretion by awarding the wife $261,240 in permanent alimony payable as a lump sum. The argument has two components: first, whether the wife was entitled to permanent alimony, payable as a lump sum; and second, whether the amount of the award was supported by evidence.

With regard to the Husband's argument that the award was "unfair," the District Court held:

1. "At oral argument, counsel for the Husband argued that it was 'unfair' to award permanent alimony as a lump sum because the Wife would get to keep the entire award even if she chooses to remarry or cohabit."

2. "The Husband cannot be heard to complain simply because his chosen financial strategy did not produce the desired result. The Husband's course of conduct forced the trial court to choose between awarding the Wife nominal permanent periodic alimony or a reasonable amount of permanent alimony payable as a lump sum. The fact that the Husband's apparent strategy to avoid paying permanent alimony backfired is the risk he took when he chose that course of action. "