January 2011 Archives

January 19, 2011

How to vacate a paternity decree in one easy step!

1182574_no_sex.jpgYes, it is possible to have the court vacate a paternity decree after it has been entered, even if years have passed by. The remedy is found in section 742.18, Florida Statutes (2006).

This statute creates circumstances under which a male may disestablish paternity or terminate a child support obligation when he receives "newly discovered evidence" demonstrating that he is not the biological father of the child. Section 742.18(1)(a), Fla. Stat. (2006).

The statute does not require a petitioner to prove fraud or duress when attempting to disestablish paternity. Rather, the statute clearly establishes the necessary allegations, requisite trial court findings, and conduct that would prohibit disestablishing paternity. Section 742.18(1)-(3), Fla. Stat.(2006).

The recent case of Johnston v. Johnston, 979 So2d 337 (Fla. 1st DCA 2008) sets forth a very clear explanation of the statute and how it works. I would recommend this case to anyone facing this particular situation.

For further information on this statute and possible assistance, you can contact me at www.alanburtonlaw.com.

January 17, 2011

"Primary residential parent" abolished in Florida

dad and daughter desktop.jpgIn 2008, the Florida legislature made substantial changes to the law in reference to minor children. The primary and most significant changes made by the 2008 amendments to section 61.13, Florida Statutes, was the abolishment of the terminology of "primary residential parent."
The effective date of the amendments were on October 1, 2008, and the changes were to have prospective application only. The changes could not be utilized to effectuate any modifications to agreements that were previously entered into by individuals prior to October 1, 2008. See the case of Hahn v. Hahn, (Fla. 4th DCA 2010).

The Hahn case is an interesting case to read. It clarifies many points of law that have arisen under the 2008 amendments to section 61.13. Although the designation of "primary residential parent" has been removed from the statute, the trial court is still required to consider the best interests of the child if called upon to create a parenting plan. The trial court must still "determine all matters relating to parenting and timesharing of each minor child of the parties in accordance with the best interests of the child. Section 61.13(2)(c)1., Florida Statute (2008)(amended October 1, 2008).

The Hahn case involved modification proceedings that were filed two years after the final judgment was entered, and before the effective date of the new statute. It was error on the part of the trial judge to apply retroactively the provisions of the new statute.

January 14, 2011

Is jewelry a marital asset and how is it valued?

diamond ring desktop.jpgJewelry is clearly a marital asset if acquired during the course of the marriage, and it is therefore subject to equitable distribution.

Placing a value on jewelry is a more difficult question. There is ample case law that sets forth the principle that valuations must be based upon competent evidence. Noone v. Noone, 727 So.2d 972, (Fla. 5th DCA 1998); see also Knecht v. Knecht, 629 So.2d 883 (Fla. 3d DCA 1993).

In Lassett v. Lassett, 768 So.2d 472 (Fla. 2d DCA 2000), the husband tesified that his wife's jewelry was valued at $10,000. There was no other evidence. The trial court stated that this was not competent evidence as to value. His unsupported opinion as to the value of the jewelry is not sufficient to warrant the distribution of that amount to the wife.

The only evidence the wife had as to the value of the husband's jewelry in the Noone case was that apparently he had told her it was worth $10,000 at some point in time. This was not considered competent evidence by the court. Alternatively, the husband valued his own jewelry at $1,500 on his financial affidavit, which the court deemed to be competent evidence.

January 12, 2011

Relocation decisions cannot be deferred

airplane desktop.jpgFlorida, and in particular south Florida, is suffering from the economic downturn experienced by the rest of the country. Foreclosures are at an all time high in Palm Beach and Broward County; families are losing their homes at an unprecedented pace.

This situation makes relocation a very real possibility for many families after divorce. Single parents are looking for better opportunities for themselves as well as for their children. As a result, trial judges are dealing more frequently with the very difficult issue of relocation. Relocation cases are extremely difficult since most often times there is little to negotiate and there is no room to compromise. One parent wants to go, while the other would prefer that his or her children remain in close proximity.

Relocation cases must be dealt with when the issue arises; it is not appropriate for the court to consider a relocation case today when the anticipated move will occur sometime in the future. See Sylvester v. Sylvester, 992 So.2d 296 (Fla 1st DCA 2008).

The law on this issue is supported by substantial case law. When a cause involving child custody is presented to the trial court, "the trial court is required to make a final determination on that issue at that time." Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990).

The court in the Sylvester case made it very clear that it would not be appropriate for a trial court to look into its crystal ball and determine whether relocation would be in the best interest of the child at some time in the future. The proper cause of action is to determine whether relocation is presently appropriate and consider future relocation based on the circumstances existing at that time.

January 10, 2011

Retroactive alimony is there for the asking!

pile of money desktop.jpgThe entitlement to an award of retroactive alimony is a right, and not a privilege, if the circumstances support the award. See alimony update for additional information on this subject.

The case of Gremel v. Gremel, 35 Fla. L. weekly D2291a (Fla. 2nd DCA 2010) illustrates the point. Mrs. Gremel separated from her husband in December 2003. She did not file her divorce petition until March 15, 2007, more than three years after her initial separation. On April 1, 2008, the trial court entered a temporary order requiring Mr. Gremel to pay his wife $2950 per month, as of April 1, 2008.

The appellate court stated that Mrs. Gremel may very well be entitled to retroactive alimony from March 15, 2007, the date of the filing of her petition for dissolution of marriage. See Valentine v. Van Sickle, 35 Fla. L. Weekly D1663 (Fla. 2d DCA Jul. 28, 2010).

The trial court was instructed to consider the wife's needs and the husband's ability to pay during the retroactive time period sought by the wife in determining whether the wife's retroactive alimony request is appropriate.

January 7, 2011

Supervised visitation and hearsay

whisper desktop.jpgObviously, the courts won't hesitate to enter any orders when necessary to protect minor children from harm. This would include orders for supervised visitation against a parent if the circumstances warranted this type of relief.

In the divorce proceedings between N.W. and M.W., 41 So.3d 383 (Fla. 2nd DCA 2010), the mother alleged that the father was sexually abusing the parties' daughter. As a result of those allegations, the father was restricted to supervised visits with his daughter. The father subsequently moved for unsupervised visits, and the mother moved to admit the child's hearsay testimony regarding the sexual abuse pursuant to section 90.803(23), Florida Statutes (2009). The court denied the mother's request, and re-instated the father's unsupervised visitation.

The mother filed a timely appeal, and the appellate court reinstated the order for supervised visitation. The court said that the trial court had applied the incorrect standard of law.

The proper standard for admitting hearsay statements of children was succinctly stated in State v. Townsend, 635 So.2d 949, 954 (Fla. 1994). The trial court has responsibility in ensuring that child hearsay statements satisfy a strict standard of reliability before admitting them as evidence. The trial court must make findings that satisfy two criteria:" (1) the source of the information through which the statement was reported must indicate trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability."

As the Townsend case makes clear, the focus on these types of cases is on the person to whom the statement was made by the child and the manner in which the statement was made.

The appellate court also noted that the mother sought to introduce statements made by the child to the mother, the grandmother, a therapist, and a family friend. The trial court's order was reversed because, as the appellate court found, the trial court made no findings with regard to any of these sources and also failed to address the individual statements and circumstances under which they were made.

The trial court neglected to follow the mandates of the Townsend case, as established by the Supreme Court of Florida.

If you or any of your family members require expertise in the admissability of hearsay evidence in order to protect a child from harm, you can contact me directly by clicking on my name, Alan R. Burton, Esq.

January 5, 2011

Civil contempt in divorce proceedings for non payment of child support

sad boy desktop.jpgFailing to pay a court ordered child support obligation can land the non complying parent in jail. However, there are certain procedures that must be followed before incarceration can occur.

An order of civil contempt for failure to pay child support requires findings of wilful failure to pay ordered amounts. If incarceration is to be orderd as a result of finding wilful contempt, the court must then make the affirmative finding that the contemnor possessses the present ability to comply with the purge. Miller v. Murrah, 14 So.3d 1019 (Fla. 5th DCA 2009); Brown v. Brown, 658 So.2d 627 (Fla. 5th DCA 1995).

The key too these cases requires that an order be in writing, and that these findings must be clearly set forth in the order. Alan R. Burton, Esq. is well qualified to assist you in preparation of appropriate orders for this purpose.

Todd Alan Grant was successful in securing his release from custody after having been jailed for non-payment of support. In his case, there was never a written order entered, and he was promptly released. Grant v. Department of Revenue on behalf of Heather R. Kopp, 27 So.3d 190 (Fla. 5th DCA 2010).

Rafael Carbonell had much the same luck as Mr. Grant. He was also incarcerated for non-payment of support, but upon filing an appeal, he was also promptly released. The order which had him jailed failed to make the specific affirmative finding that he had the present ability to comply with the purge amount as set by the court. Carbonell v. Department of Revenue on Behalf of Deydry Capella, 30 So.3d 664 (Fla. 5th DCA 2010).

If in fact there is wilful noncompliance with a child support order, it is incumbent upon the trial judge to be meticulous in his or her findings. The order directing incarceration must be carefully drafted if it is to withstand any subsequent attack.

January 3, 2011

Is a hearing required before a court can vacate temporary injunctions against domestic violence?

The issue of vacating temporary injunctions against domestic violence was dealt with in Schock v. Schock, 979 So.2d 1201 (Fla. 4th DCA 2008).

In this case the father had obtained injunctions against his child's mother, along with another one against her boyfriend. The allegations made included neglect and abuse against his daughter. The duty judge found the allegations appropriate for the issuance of an injunction, that the child involved was the victim of domestic violence, and was in immediate and present danger, and he issued the orders accordingly.

In response to all this, the mother filed an Emergency Motion For Return of Child and Change of Custody in the dissolution of marriage action that had been filed. Two days after the mother had filed her motions, the trial judge assigned to the divorce case entered two orders vacating the injunctions that had been previously entered by the duty judge.

The judge decided on his own that the allegations made by the father in his application for an injunction against the child's mother were conclusory, and those which were made against the boyfriend were based upon hearsay.

On appeal, the trial judge was reversed. The appellate court stated that once an injunction is issued under Section 741.30, Florida Statutes, the injunction cannot be vacated without a hearing. Sanchez v. State, 785 So.2d 672, 676 (Fla. 4th DCA 2001).

As a result of this ruling, the temporary injunctions were re-instated, and the trial court was instructed to conduct an evidentiary hearing before ruling on the motions filed by the mother. See also White v. Cannon, 778 So.2d 467, 467-68 (Fla. 3rd CA 2001).

For further information, advise, or any questions on this topic, please click the following link: www.alanburtonlaw.com