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Does the Circuit Court have jurisdiction to modify child support payments originally established by an administrative support order?
Yes. In a recent appeal from the Circuit Court for Hamilton County, the Florida Department of Revenue challenged the Circuit Court’s order which adopted a Child Support Hearing Officer’s Report and Recommendation as the Order of the Court. The Order included a provision reducing the Appellee’s future child support payments, from $433.63 per month (as calculated by the Department of Revenue in accordance with section 409.2563, Florida Statutes) to $237.00 per month (as agreed by each parent), with the reduction to begin two years from the date of the Order.
Contrary to the Department of Revenue’s argument, the Appeals court found that section 409.2563 actually provides for the Circuit Court to have jurisdiction over a prospective modification of child support payments originally established by administrative support order.
As the Court advised, “The introductory language in section 409.2563, Florida Statutes specifically describes the legislative intent of the statute:
It is not the Legislature’s intent to limit the jurisdiction of the circuit courts to hear and determine issues regarding child support. This section is intended to provide the department with an alternative procedure for establishing child support obligations in Title IV-D cases in a fair and expeditious manner when there is no court order of support. In addition, section 409.2563(10)(c), Florida Statutes clearly recognizes the circuit court’s authority to issue an order prospectively changing the support obligation thusly: (c) A circuit court of this state, where venue is proper and the court has jurisdiction of the parties, may enter an order prospectively changing the support obligations established in an administrative support order, in which case the administrative support order is superseded and the court’s order shall govern future proceedings in the case….
See Florida Department of Revenue OBO Proveaue v. Williams, 36 Fla. L. Weekly D1955 (Fla. 1st DCA 2011).
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 Lee County Florida.
Is it possible to be “right,” but still lose your case?
Believe it or not the answer is “yes.” A recent South Florida case addressed two procedural issues in post dissolution of marriage cases. The first issue dealt with a referral to the general magistrate for Florida Statute Section 57.105 sanctions. The court found it did not have the jurisdiction to hear this issue. Stating in relevant part: “Neither the possibility (or even likelihood) that a party will incur additional attorney fees and costs as a consequence of an erroneous non-final order, nor that the court will waste limited resources by proceeding, is a sufficient ground to confer jurisdiction on an appellate court to review an otherwise non-appealable, non-final order.”
The second issue dealt with reimbursement for federal income taxes paid by the wife on her post-divorce alimony. On this issue the matter was initially heard by a magistrate. The magistrate denied the Wife’s claim, which she appealed to the Circuit court. However, she did not do this within the 10 days required by law. As such, the Appeals Court found that the trial court erred when it failed to adopt the magistrate’s report.
Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law, and Civil Litigation. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.
See Edge v. Edge, 36 Fla. L. Weekly D1977 (Fla 3d DCA 2011).
Steven E. Martin attends meeting of the Judicial Administration and Evaluation Committee for the Florida Bar in Orlando, Florida
Steven E. Martin of the Martin Law Firm, PL, a member of the Florida Bar’s Judicial Administration and Evaluation Committee attended the meeting of the committee in Orlando, Florida on September 16, 2011. The Committee addressed lack of attorney response to judge evaluation surveys, a voters’ guide for the upcoming 2012 judicial merit retention vote and a proposed new rule of Judicial Administration addressing disqualification of trial judges.
The Committee has a longstanding program where attorneys can confidentially and anonymously submit surveys to judges in their circuit providing feedback to the judges enabling them to improve their performance. Unfortunately, the program has received a dismal response. Out of 439 judges who actually mailed the feedback forms to attorneys, only 5% of the forms where actually returned. The committee noted that there are a number of judges who also do not participate in the program. It was discussed that rather than having the judge to be evaluated submit the form to the legal community it should instead be addressed by local bar associations, local clerks of court, or by the chief judge of each judicial circuit in Florida. Mr. Martin agreed to meet with Judge Jay Rosman, Chief Judge of the Twentieth Judicial Circuit to discuss the issue. Additionally, the committee has an anonymous website for attorneys to submit judicial feedback maintained at: www.floridabar.org/judicialfeedback.
Steven E. Martin of the Martin Law Firm, PL, and a member of the Florida Bar’s Judicial Administration and Evaluation Committee, believes the process of evaluation provides benefit to the judiciary. “Everyday, the marketplace and my peers in the legal community evaluate my performance as an attorney, and I make adjustments where I am deficient. This program, properly implemented, will improve our judiciary. A judge should know which approaches to their work are viewed by attorneys as effective and appreciated and also when certain approaches may need to be changed.”
The committee also continued work on a Guide for Florida Voters regarding the upcoming judicial elections and merit retention vote to be prepared for the 2012 elections. Merit retention is a system of selecting Florida’s Supreme Court Justices established by the voters when they amended the Florida Constitution in the 1970s. Under merit retention, the Governor appoints new Justices from a list of three to six names submitted by a Judicial Nominating Commission. The Governor must select from the list. Once appointed, Justices eventually must face the voters in a “yes” or “no” vote as to whether they should remain in office. If retained, the Justice serves a six-year term beginning in early January following the merit retention election. Three Florida Supreme Court Justices face a merit retention vote in the 2012 elections.
Additionally, the Committee continued work on proposed new rule of Judicial Administration regarding disqualification of trial judges. The committee debated numerous points as to what grounds could a party in a suit file a motion to disqualify a judge in a pending matter. The committee will hold a special meeting in December to finalize the language of the proposed rule.
The Judicial Administration and Evaluation Committee has the responsibility of accepting specific assignments from the Board of Governors in areas regarding judiciary. The committee reviews all legislation prefiled pertinent to the judiciary and makes recommendations either to the Board of Governors or the Legislation Committee. The Judicial Administration and Evaluation Committee also assists the Florida Supreme Court in the Judicial feedback program.
Steven E. Martin’s practice focuses on estate planning, civil litigation, business planning, family law and real property law. Martin is the Immediate Past President of the Cape Coral Bar Association and is an active member of the Lee County Bar Association. Martin is a member of the Florida Bar’s Judicial Administration and Evaluation Committee. Martin is also a member of the Tax, Business Law, Elder Law, and the Real Property and Trust Law Sections of the Florida Bar Association. Martin is a member of the Calusa Chapter of the American Inns of Court.. Martin is admitted to practice in the state of Florida and in the Federal Court for the Middle District of Florida.
Built on a tradition of service to the community, the Martin Law Firm, P.L. brings to Southwest Florida a fresh approach to legal representation with accessible attorneys and a commitment to client satisfaction. The Martin Law Firm attorneys are known not only for their legal skills, but for their leadership among peers, success in business and service to the civic community, both here and abroad.
Can the owner of a poorly maintained flat-bed trailer that flips on its side be found liable for damages suffered by the driver of the vehicle?
At trial, the driver’s attorney presented evidence demonstrating that the defective condition of the flat bed was the cause of the driver’s injury. First it was shown that flat-bed trailer was in poor condition with holes in the floor of the bed as well as rotten and warped wood. Second, Joseph Trucking was shown to have knowledge of the poor condition of the flat-bed. Third, it was shown that wood used in previous repairs was not the type typically used for such repairs. Fourth, Joseph Trucking was unable to produce any maintenance or repair records for the flat-bed trailer. Fifth, the driver was able to present evidence that the concrete pieces where properly loaded and secured on the flat-bed trailer. Sixth, the driver was demonstrated to be a properly licensed commercial vehicle operator with the necessary experience. Finally, the driver was able to demonstrate that he was experienced with driving on the roadway where the accident occurred.
The jury found that Joseph Trucking was 70% at fault and the driver was 30% at fault. Interestingly, the trial judge granted Joseph Trucking’s motion for directed verdict, finding that the notwithstanding the evidence describe above, the driver had failed to demonstrate that defective condition of the truck caused the accident. On appeal, the 5th District Court of Appeal disagreed with the trial court and overruled the trial court, finding that the driver’s attorney did present sufficient evidence at trial for the jury to find that the poor condition of the flat-bed trailer was a contributing cause of the accident.
See Benitez v. Joseph Trucking, Inc., 36 Fla. L. Weekly D1995 (Fla. 5th DCA 2011).