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An adoption subsidy paid by the State of Florida to the parents of special needs children may not be considered as a credit against the spouse’s child support obligation.

The Legislature has made adoption assistance, including financial aid, available to prospective adoptive parents who adopt a child with special needs through the state’s foster care system.

The purpose of the adoption subsidy is to encourage individuals to adopt special-needs children by assisting the parents with the extra care a special needs child requires.

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The failure to pay court-ordered child support can lead to a finding of contempt of court if the payor has the financial ability to pay the court-ordered child support.

What happens however, when the payor spouse files a petition for downward modification of the child support obligation, and the recipient of the child support files a motion for contempt?  How will these competing pleadings be handled by the trial court?

A petition for modification of child support should either be heard before or simultaneously with a motion for contempt, in order for the trial court to determine if in fact there is a factual basis to reduce the child support obligation.

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A denial of due process can come in many different forms.  When an incarcerated spouse filed a timely motion to appear at his final hearing by telephone, and his motion was denied, he was effectively denied due process of law. The trial court committed reversible error in Rodriquez v. Rodriquez when this specific request to appear by telephone was denied.

The importance of clearly setting forth the nature of a specific hearing, in either a court order setting a matter for a hearing or in a notice of hearing cannot be understated.  If a trial court conducts a proceeding that expands beyond what was noticed for that particular hearing, over a litigant’s objection, a denial of due process will occur.

In Shah v. Shah, the trial court conducted a final hearing for dissolution of marriage, in spite of the fact that the case was noticed for a status conference, and not a final hearing.  The court’s notice to the litigants clearly stated that either a final hearing or a status conference would be conducted, however, if the pro se wife filed an answer than the court would only conduct a status conference.  In spite of the fact that the pro se wife did file an answer, the court went ahead anyways and granted a dissolution of marriage.  The appellate court stated that under the circumstances of the facts presented in this case, a denial of due process had occurred.  A fundamental prerequisite to due process requires proper notice and an opportunity to be heard.

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A trial court is required to make sufficient findings about an individual’s ability to pay alimony.  A litigant requesting alimony has the burden of proof on both his or her financial need as well as the other spouse’s ability to pay and meet that need. Gilliard v. Gilliard, 162 So3rd 1147 (Florida 5th DCA 2015).

In a recent case, Rutan v. Rutan, 177 So3rd 35 (Florida 2nd DCA 2015), the trial court noted the well-known ability of “self-employed spouses, in contrast to salaried employees, to control and regulate their income.”

Reasonable inferences made by a trial court from the evidence submitted regarding a party’s income are not enough. Inferences, no matter how reasonable, do not constitute a satisfactory substitute for the trial court making specific findings concerning the actual amount of income that would justify an alimony award.

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Changing the surname of the minor child after divorce is no simple matter.  As a matter of fact, the burden of proof in such a situation is extremely high.

The standard for changing the child’s name is whether the change is in the child’s best interests or is necessary for the welfare of the child.  Azzara v. Waller, 495 So.2d 277 (Fla. 2nd DCA 1986) stands for the proposition that a minor’s surname should only be changed when the evidence affirmatively shows that such change is necessary as necessitated by the welfare of the child.  In Coolidge v. Ulbrich, 733 So.2d 1092 (Fla. 4th DCA 1999), the court stated that a child’s surname should remain unchanged absent evidence that the change is necessary for the welfare of the child.

When a trial court changes the surname of a minor child without adequate evidence, it constitutes an abuse of discretion.  A petitioning parent cannot meet the heavy burden in these situations by making assertions which are conclusory, speculative, unsupported by competent and substantial evidence, and irrelevant to the best interests of or for the welfare of the child.

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Issues regarding the fitness of parents frequently appear in divorce cases.  Often times one of the spouses will question the competency or moral fitness of the other parent when issues concerning minor children arise.

There is a two-part test that the Court applies when a party is requesting that the other party submit to either a psychological evaluation or a substance abuse evaluation.  First, the issue must be “in controversy”, and second, “good cause” must be shown.

Florida Rules of Civil Procedure, Rule 1.360(a) provides for compulsory psychological evaluations or drug testing only when the party submitting the request has “good cause” for the examination.  The party requesting the examination has the burden of proof in showing that both the “in controversy” and “good cause” prongs have been satisfied before the court can order testing.

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A final divorce decree providing for the custody of a child can be materially modified only if there (1) are facts concerning the welfare of the child that the court did not know at the time the decree was entered, or (2) has been a substantial change in circumstances shown to have arisen since the decree.  The petitioning parent bears an extraordinary burden to prove a substantial change in circumstances.

A party, in order to modify a final judgment of dissolution of marriage, must allege and prove an unanticipated substantial, material change in circumstances since the entry of the final judgment.  See the case of Chapman v. Prevatt, 845 So.2d 976 (Fla. 4th DCA 2003) for a further discussion of this topic.

In Blevins v. Blevins, 172 So. 3rd 568 (Florida 5th DCA 2015), the former husband successfully appealed his former wife’s supplemental petition seeking to modify their final judgment of dissolution of marriage.  The modification order in this case was based primarily upon the court’s concern regarding the distance of the child’s school, which was a one-hour drive from the former wife’s residence.

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Did your divorce case turn out different than you expected? Are you considering a review and appeal of your case? If you’ve answered yes to these questions, you should be prepared to review your conduct through the course of the trial court proceedings.

The right to file an appeal is not without limitations. Appeals will be dismissed in dissolution of marriage cases where the appealing party has been held in contempt for failure to pay court-ordered support, or if the appealing party does not comply with the trial court’s orders within a set period of time.

Where an appealing party has disobeyed an order from the trial court, the appellate court may, in its discretion, either entertain or dismiss an appeal.  Where dismissal is ordered, it is mandatory however, that the disobedient appealing party be given a period of grace, prior to the effective date of the dismissal, in which to comply with the disobeyed order.

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The current law in Florida provides that a parent cannot relocate or change the location of their principal residence if that change of residence will be more than 50 miles from their current residence.  If a spouse is considering a move that is more than 50 miles away, they must obtain either the written consent of the other spouse, or seek approval from the court.  The relocation provisions of Florida law are found in Florida Statute 61.13001.

In the absence of a statutory or contractual provision to the contrary, the proper method to measure the distance between 2 points is the straight line or quote as the crow flies” measure. If the distance using the straight-line test measurement is less than 50 miles, a move can be made by one parent without consent from the other parent or approval from the court. This would be true even if the move is 49 miles away.

However, simply because a move is less than 50 miles away, does not mean that other aspects of a parenting plan would be effected.  A move 49 miles away would most definitely effect the school boundaries, and therefore the school that the minor child would attend.  Does this mean that the moving or relocating parent has a right to change schools without obtaining the other parent’s consent?

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Child support is calculated initially by adding together each of the parties respective gross incomes.  What can you do if one of the parties is out of work and unemployed?  Do you have the right to impute income to the unemployed parent?

Florida law authorizes a court to impute monthly income to a voluntarily unemployed parent.  Florida Statute 61.30(2)(b) authorizes the imputation of income.

A trial court must engage in a two-step process when they are asked to impute income to an unemployed parent. First, the court must conclude that the termination of income was voluntary.  An example of voluntary employment occurs when you are terminated from your employment based on your own actions or misconduct.  See the case of Heard v. Perales ( Florida 4th DCA 2015) for a further discussion on this topic.