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."