When scheduling a hearing the attorneys attempt to estimate to the best of their ability the amount of time necessary for a given hearing.  Sometimes, this estimate is inaccurate. Due process requires that both sides be given an approximately equal amount of time to present their evidence and argument.  If there is not enough time to present evidence for one side it may be necessary to continue the hearing.  Unfortunately, this may result in a delay in receiving an order but is the proper procedure.

In one recent Second District Court of Appeal case the trial court was hearing the issue of attorney’s fees and costs.  The Wife was not able to complete the presentation of evidence for her case.  The Husband was not given an opportunity to present any evidence.  The trial court continued the hearing; however, prior to the scheduled hearing the trial court denied the motion for attorney’s fees in favor of the Husband.  Even though the Wife had some opportunity to present evidence and the court ruled in favor of the Husband, it was still error to rule prior to allowing both sides to present evidence. 

A trial court’s failure to allow a party to present evidence to be heard on the issues pending before the court constitutes a denial of due process.”

See, Farrell v. Farrell, 37 Fla. L. Weekly D882 (Fla. 2nd DCA 2012).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Termination of Parental Rights is a serious issue in Florida Law. The Department of Children and Family Services often becomes involved in situations where a child’s welfare is in danger. Many times extended family members may be concerned about the parenting style or neglect by the child’s parents. If this becomes an issue, or if abuse is a concern, the Department of Children and Family Services will often take part in the case.

In temporary situations where children need to be provided care, family members may apply for Temporary Custody by and Extended Family Member, by petitioning the Court for an order allowing them to temporarily care for the children at issue. Many times this is a better situation for everyone involved, because the children are then able to be cared for in a familiar environment, and the Court is able to monitor the situation first hand.

See In the Interest of N.F., a child N.F., Appellant v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees, 37 Fla. L. Weekly D654.

Patricia Dills is an Attorney with Martin Law Firm, P.L., whose practice
focuses in Divorce, Child Support, Family Law, and Civil Litigation. She
primarily practices in Naples, Collier County, and Fort Myers, Lee County Florida.

Unfortunately sometimes one spouse won’t follow the agreement they entered into.  This occurs for a variety of reasons, for example sometimes things have changed, sometimes they didn’t like one portion of the agreement all along, and sometimes they are just being difficult.

Regardless of the reason for the change it is important to follow the proper procedure.  If one spouse desires a change in the agreement it is necessary to file a Motion to Modify the agreement or to come to a written modification between the parties.  If your spouse does not file a Motion to Modify the agreement but unilaterally modifies the agreement it is necessary to file either a Motion for Contempt of Court or a Motion to Enforce. 

In one recent case the parties had agreed that the Husband would pay one half of their eldest child’s college expenses at a Florida University.  However, the son elected to attend an out of state school.  The mother desired that the Father pay one half of this expense.  However, the Court was without jurisdiction to order this because the mother did not modify the valid agreement. The Appellate Court held

absent a pending motion to modify, the trial court lacked authority to modify the terms of the marital settlement agreement by order that the former husband be required to reimburse the former wife for only one-half of the cost of the oldest son’s college education, based on what the cost would have been if the child had attended a state university in Florida on his Bright Futures scholarship.”   

See, Hartman v. Hartman, 37 Fla. L. Weekly D785 (Fla. 4th DCA 2012).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

On February 29, 2012 the Second District Court of Appeals issued an opinion involving the appointment of a Personal Representative (sometimes referred to as an executor or administrator) for the estate of a decedent who died without a Will.  When a decedent has made a valid Will, this document will normally nominate a person or bank to be Personal Representative.  What happens when there is no Will?

The Florida Probate Code specifies that there is a priority of preference that is to be followed in determining who will be Personal Representative.  A surviving spouse comes first, followed by a person who is selected by a majority in interest of the heirs.  A “majority in interest” means a person or combination of people who get at least 51% of the value of the assets of the estate.  The third preference is an heir nearest in degree (meaning essentially the closest relative or someone from a group of people who all have the same relationship to the decedent).

In the February ruling the court was confronted with a situation where a surviving spouse requested that he be appointed Personal Representative of his late wife’s estate.  The request of the surviving spouse was challenged by the decedent’s mother (the spouse’s mother-in-law).  The mother asked to be appointed Personal Representative and made allegations against the spouse of a “serious nature” in her petition to the court.  The published opinion does not specify what those allegations were, but the appellate court confirmed that person’s preference in appointment is subject to their being fit to serve.  A person is not fit to serve if the individual “lacks the necessary qualities and characteristics”.

The important point in the appellate ruling is that because the trial court appointed the mother of the decedent simply on her allegations and without her presenting any actual evidence of the spouse‘s lack of fitness, the case was sent back for a hearing where such evidence must be presented.

There are some valuable lessons to learn from this case.  First, in contested estates, suspicions and allegations are not enough to win.  You have to prove wrongdoing or lack of fitness with facts.  Second, a person is not a Personal Representative simply because they were nominated in a Will.  The Will has to be admitted to probate (ruled valid) and the nomination approved by the Court.  Third, the approval of a nomination is subject to that person being fit, an adult, mentally competent, not being a convicted felon, and either being a resident of Florida or being related to the decedent within a definition in the Florida Probate Code.

Often one of the last things Courts want to deal with at trial is all of the personal property in the home.  This is one of the areas of the divorce which parties should make a concerted effort to resolve amongst themselves.  However, sometimes it cannot be accomplished and the matter must be tried before the Court with other property.   In a recent case, at trial, the Judge ordered the parties to attend mediation to resolve the issue of dividing the contents of the home after the trial.  The appellate court reversed citing McAvoy v. McAvoy, 662 So. 2d 744,745 (Fla. 5^th DCA 1995) (“the parties are entitled to a final distribution of their assets and liabilities at the time of dissolution”).

This case also held that when the Husband consolidated investments into one investment after filing the entire appreciation of the asset was marital and subject to divide.

See, Kumar v. Kumar, 37 Fla. L. Weekly D725 (Fla. 2nd DCA 2012).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Former NFL star Warren Sapp recently filed for Chapter 7 Bankruptcy in the Southern District of Florida.   Although Sapp’s Chapter 7 filing will no doubt be more complicated than most Chapter 7 cases, it is still governed by the same underlying rules and laws.   The basic premise of Chapter 7 is that a debtor turns over his non-exempt assets to a trustee who then liquidates the assets and uses the proceeds to pay the debtor’s creditors.  The debtor then receives a discharge of most if not all of his debt.  In most of the Chapter 7 cases that our firm files, the debtor is able to exempt all or close to all of his assets.   In cases where we can’t exempt all of the debtor’s assets, the debtor is usually able to “buy-back” his non-exempt assets from the trustee.

Warren Sapp’s bankruptcy is obviously much different than the typical Chapter 7 case.  Sapp still has significant assets and still generates a huge monthly income.  His bankruptcy schedules list his monthly income at over $115,000 per month and his monthly expenses are close to this amount.  Normally there is a Means-Test in order to qualify for Chapter 7.  However, since the majority of Sapp’s debt is non-consumer and primarily business debt, he was still able to qualify for Chapter 7.

Sapp also looks to be able to exempt a significant amount of his assets as well.  His NFL 401k and pension should be fully exempt under Florida law.  His primary residence and most if not all of his other retirement accounts are also exempt.  Sapp’s furniture, bank accounts, and jewelry are non-exempt and would need to be either surrendered or repurchased from the Trustee.  Interestingly, Sapp claims that he lost his Super Bowl and National Championship rings.  As these rings would now be property of the bankruptcy estate, Sapp would face significant penalties if it is proven that he lied about losing these rings.

Most of Sapp’s debt will be discharged among completion of his petition.  The most notable exception is child support and alimony.  Sapp owes a significant amount of child support and alimony; none of which will be dischargeable in bankruptcy.

Jonathan Bierfeld is an attorney with Martin Law Firm, P.L., whose practice focuses in Bankruptcy Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida.  He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Florida law is well settled that absent a contractual agreement releasing the liability on the promissory note, parties are responsible for the debt even after the foreclosure process is complete.  Therefore, a trial court cannot factor the speculative release of the debt in its award of equitable distribution.

A recent case out of the Third District Court of Appeal deals with this very issue.  The Husband wanted to let the marital home go into strategic foreclosure due to being underwater on the home by approximately $76,000.  However, the Wife did not want to have her reputation tarnished.  The trial court found that most people in their situation would elect strategic foreclosure and since the Wife insisted on keeping the house she should solely be liable for the debt.  The Appeals Court reversed finding this rationale legally insufficient.  Specifically, since Florida law is well settled that absent a contractual agreement releasing the liability on the promissory note, parties are responsible for the debt even after losing the collateral, the Appeals Court found the liability to be marital.  Further, as the trial court’s rationale was not within the statutory guidelines for deviation from an equal division, the Appeals Court found the trial court’s rational legally insufficient.  

See, Bryne v. Bryne, 37 Fla. L. Weekly D688 (Fla. 3d DCA 2012).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Florida Statute 61.14(1)(b), sometimes referred to as “the cohabitation statute,” states that b(1)
[t]he court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. On the issue of whether alimony should be reduced or terminated under this paragraph, the burden is on the obligor to prove by a preponderence of the evidence that a supportive relationship exists. (2) In determining whether an existing award of alimony should be reduced or terminated because of an alleged supportive relationship between an obligee and a person who is not related by consanguinity or affinity and with whom the obligee resides, the court shall elicit the nature and extent of the relationship in question….

The Second District Court of Appeals recently explained that to determine whether a supportive relationship exists, the circuit court must employ an analysis of four steps: First, the circuit court must elicit the nature and extent of the relationship in question. Second, the court must determine whether the facts establish a supportive relationship. Third, if a supportive relationship is found to exist, the court must consider the relevant economic factors for determining an award of separate maintenance or alimony outlined in section 61.08(2). Fourth, after evaluating all relevant economic factors, the court must must decide whether to reduce or terminate the alimony obligation.

If a payor is able to prove that the recipient of alimony is in a supportive relationship, the court may reduce or terminate any alimony order currently in place. These are important factors to consider when deciding whether to attempt to modify any previous alimony orders in your case.
See King v. King, 37 Fla. L. Weekly D552.

Patricia Dills is an Attorney with Martin Law Firm, P.L., whose practice
focuses in Divorce, Child Support, Family Law, and Civil Litigation. She
primarily practices in Naples, Collier County, and Fort Myers, Lee County Florida.

Many family law cases are able to be resolved at mediation, which keeps the parties from having to go before a judge to further litigate their case. Mediation is a beneficial way to work out parenting plans, child support, and even alimony arrangements between parents.

Mediated agreements can be as detailed as the parties choose for them to be. Some spouses prefer this option, so that if they other party does not comply, there is a clear course to enforce the agreement. Either party may file for contempt with the court, and the non-complying party will be forced to either comply with the agreement, or show the court why they are unable to do so.

When the court finds that one party is able to comply, but is willfully choosing not to do so, the court may find that party in contempt. At that point, it is up to each individual court to decide what sanctions to impose. Many times this may be a payment, or a “purge” amount to bring the non-compliance current, or it may be other sanctions that the court finds are proper to award the other spouse.

It is important to note that even attorney’s fees may be awarded to the spouse who files for contempt if the court finds that the non-complying party is actually in contempt. It is usually best to try to communicate and work out any differences prior to taking court action. Even if this is unsuccessful, the court will at least be impressed to know that you did try to work out the problem prior to coming into the courtroom.

See Norberg v. Norberg, 37 Fla. L. Weekly D415.

Patricia Dills is an Attorney with Martin Law Firm, P.L., whose practice
focuses in Divorce, Child Support, Family Law, and Civil Litigation. She
primarily practices in Naples, Collier County, and Fort Myers, Lee County Florida.

Sometimes the Court will allow one party to stay in the marital home while the minor child(ren) finish high school or reach majority.  It is important that the trial court set a specific enddate for the exclusive use and possession of the marital home though.  The Court can even order the mortgage to be split as part of equitable distribution and not as an inclusion in child support. 

Specifically in one recent case out of the Second District Court of Appeals the parties had a minor child.  The Court ordered that the minor child and mother could remain in the home until the minor child reached eighteen.  The trial court further ordered that the father pay child support and pay half the mortgage.  Once the child reached eighteen the home could be sold and the proceeds split.  The father appealed this decision and the Second District Court of Appeals found that the court had set a specific endpoint and that the requirement that he pay half the mortgage was not a part of his child support.

In the current economic times it sometimes does not make financial sense to sell the marital home immediately.  This is one solution which is sometimes explored in Florida Divorces.

See, Philips v. Philips, 37 Fla. L. Weekly D496 (Fla. 2nd DCA 2012).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.