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. "

What if my IRA value goes down while my divorce is pending?

     This case exams the problems judge's face when establishing value of retirement accounts at the time of trial.  In the case of Lilly v. Lilly, 35 So.3d 1022 (Fla. 5th DCA 2010), the court stated that a spouse must prove the value of an asset beyond a mere assertion in a pleading.

TRIAL COURT ERRED BY AMENDING FINAL JUDGMENT TO CHANGE VALUATION DATE AND VALUES OF RETIREMENT ACCOUNTS TO REFLECT A DOWNTURN IN THE ECONOMY BASED SOLELY ON HUSBAND'S BARE ASSERTIONS IN REHEARING MOTION.

In the Final Judgment the lower court awarded the Wife one-half of the marital portion of three retirement accounts, valued as of the trial date based on the evidence presented. But in the Amended Final Judgment, the court valued the accounts as of the date the Final Judgment was entered, to reflect a downturn in the economy as asserted by the husband in his rehearing motion. The District Court reversed:

1. "The court erred by changing the valuation date and values without any evidentiary basis."

2. "Although section 61.075(7), Florida Statutes, gives the trial court discretion to pick an equitable date to value assets, section 61.075(3) requires the trial court to establish a value based on competent, substantial evidence."

3. "The wife correctly argues that the husband's bare assertions in a motion for rehearing were not evidence. Although the value of the assets may well have dropped, as the husband asserted, he failed to present any evidence to support this assertion or the court's findings."

            It is important to have experience legal representation so values can be properly proved at trial.

Are oral contracts for a sperm donor enforceable?

In the case of Janssen v. Alicea, 30 So.3d 680 (Fla. 3rd DCA 2010), the Court states that a judge has to decide whether the father was a "sperm donor" with no rights or a parent with all rights.

            The Father and the Mother, who had been close friends, agreed to have a child through artificial insemination. The Father donated the sperm used for the artificial insemination and the Mother gave birth to the child. The child's birth certificate listed the names of both the Mother and the Father. Two years later, the Mother moved to California with the child and the Father filed an action for paternity. The Father alleged that he and mother together planned for and purposely conceived the child intending that they both would act as the child's parents. The Father also alleged that he played an active role during the pregnancy and lifetime of the child (then, two years). The Mother alleged that Father was simply a sperm donor and a part of the child's life at her discretion. The Mother asserted that section 742.14, Florida Statutes (2008) barred the action because the Father was simply a sperm donor. The Father argued that the parties were a commissioning couple and not subject to that statute. The trial court entered a summary judgment for the Mother. The District Court held:

            1. "Section 742.14 provides: 'The donor of any egg, sperm, or pre-embryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement . . . , shall relinquish all maternal or paternal rights and obligations with respect to the donation of the resulting children.' "

2. "Section 742.13, Florida Statutes (2008), defines 'a commissioning couple' as 'the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parties.'"

3. "Here, the parties do not have a written contract governing their relationship. In fact, the father alleged an oral agreement to co-parent the child."

4. "We find that it is possible for the court to conclude that the parties are a commissioning couple. However, there are genuine issues of material fact that cannot be determined on summary judgment. Accordingly, we reverse final summary judgment, and remand for further proceedings consistent with this opinion."