Yes, the Court may change the primary residential parent based on a refusal to comply with the Court ordered time-sharing. Florida Statute § 61.13 provides that the trial court “[m]ay upon the request of the parent who did not violate the time-sharing schedule, modify the parenting plan if modification is in the best interest of the child.” Fla. Stat. 61.13(4)(c)(6) (2010).

However, procedure is everything in the law.  Specifically, the trial court CANNOT change the primary residential parent based on contempt of court. In a recent case the trial court attempted to change the primary residential parent as a contempt of court proceeding.  There were many issues with the trial court’s ruling, first the trial court did not allow the Father to be heard in the proceedings.  Second, the Mother did not even ask for the primary residential parent to be changed.  Most important though, the trial court did not find it would be in the best interests of the children to make this change.

Therefore, if you are having trouble with a time-sharing agreement it is important to seek modification through the proper channels.  The court may award make up time-sharing for failure to comply with the court order time-sharing agreement; but it may not change the primary residential parent under a contempt charge. 

See Hunter v. Hunter, 65 So. 3d 1213 (Fla. 2d DCA 2011) (Hunter I); See also, Hunter v. Hunter, 36 Fla. L. Weekly D2274 (Fla. 2d DCA 2011).

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.

When couples divorce, it is not uncommon for one party to choose to move out of state.  This issue becomes complicated when there are children involved.  The Fifth District Court of Appeals recently upheld a ruling by the Circuit Court for Orange County providing that a mother was able to leave the state of Florida to move to California with the parties’ minor children.   The Court confirmed that the lower court should have entered permanent time sharing arrangement as part of the divorce order, but upheld the decision to allow the mother to relocate, provided that the former husband has “frequent contact with the children via internet video chat, and an agreement that the former wife would bear most of the travel costs for the children to regularly return to Florida to spend time with their father.”

The ability for families to communicate by internet, cell phones, and other electronic communication is drastically changing the way time sharing arrangements are structured between parents in divorce actions.   Both parents should put considerable thought into how the time sharing agreement can be most beneficial for their children’s relationship with each parent.

See Kish v. Kish, 36 Fla. L. Weekly D2228.

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.

Florida Statute § 88.6041 explains how out of state support orders are to be enforced in Florida.  It provides:

(1) The law of the issuing state governs the nature, extent, amount and duration of current payments and other obligations of support and the payment of arrearages under the order

(2) In a proceeding for arrearages, the statute of limitations under the laws of this state or of the issuing state, whichever is longer, applies.”

Fla. Stat. § 88.6041 (2010).  In summary, the order from the issuing state will govern the details of the support.  However, as to how long the payee has to enforce the order, the state’s law which provides the longer time period for enforcement will govern.  Support orders include child support and spousal support which is commonly referred to as alimony.

Florida allows the payee an unlimited amount of time to enforce a support order.  Thus when an out of state support order is being enforced in Florida, it may be enforced at any time, up to and including against the estate of a deceased payor.  There are affirmative defenses to enforcing an out of state order which may be relied on by the payor; however, these defenses will require an evidentiary hearing based on the conduct of the parties and not simply the passage of time.

See Jackmore v. Jackmore, 36 Fla. L. Weekly D2217 (Fla. 1st DCA 2011).

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.

A low impact auto accident is generally defined as an incident that takes place atspeeds less than 10 miles per hour (mph). This type of collision usually causes the least amount of damage to the vehicles involved. Body injuries can result from any accident and that includes ones that occur with vehicles going less than 10 mph. Soft tissue injuries are the most common problem for those involved in a low impact accident.

A motor vehicle accident that takes place at speeds between under 10 mph often brings about little visible damage to the cars involved. Sometimes due to the fact that minimal damage was done to vehicle the injuries to the people in the vehicles are overlooked. This does not mean that bodily injury did not occur to the passengers during the crash. While an automobile is built to take a slow 5 to 10 mph crash that is not true for your body. In a low impact accident a person’s soft tissue can easily be damaged. The back and neck are the usual problem spots for soft tissue injuries and can result in life changing injuries. Soft tissue is a person’s ligaments, tendons and muscles. Soft tissue injuries are typically classified as contusions or bruises, sprains or strains.  While these injuries may not appear as dramatic as a broken bone, if you have ever suffered from a sprained ankle or similar injury you know that they can be both painful and debilitating.

A contusion is an injury to the soft tissue caused by blunt force.  This force produces pooling of blood around the injury causing discoloring of the skin.  This is commonly referred to as a bruise.  Bruising can be found in different shapes and colors.

A sprain is an injury to a ligament often brought about by wrenching or twisting of a joint.  A sprain canbe a simple sprain, a partial tear or a complete tear. This can happen to various parts of a person’s body during an accident. It is not uncommon for a person to twist in their seat as a vehicle during the impact phase of the accident.

A strain is an injury to the muscle or tendon caused by overuse, force or stretching. The force of the car crash can push on a person’s soft tissue or cause parts to stretch in anabnormal way. Muscles and tendons support your bones. A strain may cause a partial or complete tear in the muscle and tendon combination.

The neck of a car occupant can whip forward causing the from a rear impact injuryknown as whiplash. General Motors (GM) conducted a study regarding crashes at speeds below eight mph. GM found, that injuries do occur at such low speeds. The study also showed that whiplash injuries account for more than half of all injuries connected tovehicular accidents.

A significant percent of those hurt in low speed collisions have reported having neck pain up to three years later. This injury is likely to be worse in those that experienced in a rear end collision. Depending on the age of the person this injury could cause permanent disability.

Whiplash-a soft tissue injury to the neck-is also called neck sprain or neck strain. It ischaracterized by a collection of symptoms that occur following damage to the neck,usually because of sudden extension (backward) and flexion (forward). The disordercommonly occurs as the result of an automobile accident and or a slip and fall, and mayinclude injury to intervertebral joints, discs and ligaments, cervical muscles, and nerveroots. Symptoms such as neck pain may be present directly after the injury or may bedelayed for several days. In addition to neck pain, other symptoms may include neckstiffness, injuries to the muscles and ligaments (myofascial injuries), headache,dizziness, abnormal sensations such as burning or prickling (known as paresthesias), orshoulder or back pain. In addition, some people experience conditions such as memoryloss, concentration impairment, nervousness/irritability, sleep disturbances, fatigue, or depression.

One of the most effective and financially damaging ways in which a creditor can collect a debt is through a process known as garnishment.  Garnishment is a court-ordered method of debt collection in which the personal property of a debtor, in the hands of a third party, is seized in order to satisfy a debt.  Generally, garnishment begins after a creditor receives a judgment, and then a writ of garnishment from the court to collect what is owed. 

 The most common form of garnishment is wage garnishment which is usually accomplished in two ways.  The first is by seizing your bank account in which the creditor is able to gain access to your account and make withdrawals directly from it.  The second method is when the creditor has received a court order allowing it to collect a percentage of your wages directly from your employer in order to satisfy the debt.

 Although the seriousness of wage garnishment cannot be understated, in most cases the debtor will at least have some notice that his wages might be seized, or that his bank account is about to be frozen.  Thanks to Due Process protections, a creditor cannot garnish your wages without first having a judgment.  This means that the creditor needs to have filed a successful lawsuit before it can move for the writ of garnishment to be issued.  Once the writ of garnishment has been issued, however, the debtor will usually not have further notice until after the wages have been withheld, or a hold has been placed on a bank account.

 When a writ of garnishment is ordered, it is sent directly to the debtor’s employer ordering it to withhold a certain percentage of the debtor’s income.  If the employer fails to withhold this money then the employer itself is potentially liable for the full amount.  Even though an employer is legally not allowed to discriminate against an employee who is having his wages garnished, it is still a potentially embarrassing situation for both parties.  Also, we have found that many employers find this process to be troublesome in many ways as abiding by the court’s judgment often requires extra work for the employer, and can be quite time consuming.

 Debtors do have some remedies at their disposal in order to help reduce the effects of garnishment.  The most common method is to try to file for one of Florida’s garnishment exemptions from the court that issued the writ.  The most generous of these exemptions is Florida’s Head of Household exemption which potentially allows a debtor, who earns more than 50% of his household income, to fully exempt his wages.  It is not uncommon, though, for a debtor to learn that they have waived at least a portion of this exemption when they applied for the loan or line of credit.  Another complication that arises is with small business owners, as a lot of times their income is not considered to be wages under the definition of the statute.

 Filing for bankruptcy protection is also another option to stop garnishments.  The moment that you file a bankruptcy petition, the bankruptcy court will issue an order called an “automatic stay.”  The automatic stay requires all creditors to at least temporary halt their efforts of debt collection.  This can sometimes last the duration of the case, or until the bankruptcy judge signs an order lifting the stay.  This means that all phone calls, lawsuits, foreclosure actions, and garnishment needs to immediately stop or your creditors will face legal action.  Futhermore, by filing for bankruptcy there is a good chance that the judgment can be cancelled, and the debt owed to that judgment creditor will be discharged along with your other debts.

 There are many different defenses to garnishment available to debtors that are facing a lawsuit or have creditors who have already received a judgment.  Many of these defenses are usually quite complicated.  If you are contemplating pursuing an exemption or filing for bankruptcy, it is important to contact an experience attorney who can help guide you through your options.

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.

As far as a technical definition it is likely nonmarital; however, any increase in value is likely considered a marital asset.

Earlier this year the Second District Court of Appeal, which is the appeals court for our local courts in Fort Myers and Naples, decided a case involving a family business started prior the marriage.  Specifically, the Husband started a corporation which he was the sole shareholder prior to his marriage.  After marrying, he moved to Florida and reincorporated the business.  The trial court found this action made the corporation marital property.  However, the Second District Court of Appeal, relying on previous precedent, found it was nonmarital property.  

The court found that under Florida Statue § 61.075 the property was acquired from assets held prior to marriage.  Thus the business was properly considered nonmarital property. The Husband had transferred a percentage of this company to his Wife during the marriage.  This transfer was properly considered marital property under Florida Statue § 61.075.  Additionally, because marital labor and resources were put into the business, any increase in value was properly considered marital property subject to equitable distribution.

Since the court reversed a portion of the equitable distribution award it necessitated review of the alimony and attorney’s fees award by the trial court on remand.  Alimony and attorney’s fees are based on a need by one spouse and the ability to pay by the other spouse.  If there is a substantial equitable distribution, it is possible that there will not be the need for alimony or attorney’s fees.  However, if a substantial distribution is reduced on appeal, it is likely that the alimony and attorney’s fees also be adjusted.

See Orloff v. Orloff, 36 Fla. L. Weekly D643 (Fla. 2d DCA 2011).

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.

The Florida Fifth District Court of Appeals recently upheld a Florida trial court’s decision to award temporary child support in a Paternity Action. The father in this case appealed the trial court’s order which directed the father to pay $517.16 as the father’s proportionate share of day care and health insurance costs for the child, as well as 50% of any agreed-upon extracurricular activities.

The father based his argument on the fact that the child already received $405 per month from Social Security based upon his disability, the fact that the parties still resided in the same household, and that the Paternity Action was not final. The Appeals Court held that there was no abuse of discretion and agreed with the trial court’s ruling, noting that the Court found the father’s appeal to be frivolous.

In an opinion filed September 22, 2011, a Florida District Court of Appeal ruled that a trial court improperly ordered deductions from an Appellant’s income for a portion of an arrearage that does not represent family support or related attorney’s fees.

During the pendency of the dissolution of marriage action, the Appellant liquidated his children’s pre-paid college accounts, which the trial court had ordered not to be liquidated. When the Appellant failed to place the funds in a trust pending a final determination of the funds’ marital status as ordered by the court, the trial court directed that $300 per month be deducted from his income until an arrearage of $24,308.59 had been satisfied. This amount included the above mentioned liquidation amount, along with other support arrearages.

The Appeals Court held that the pre-paid college accounts are not part of Appellant’s support obligation, and even though the Appellant was obligated to comply with the court’s order to place the funds in trust pending the final determination of their marital status, this obligation may not be enforced through an income deduction order. The Court stated:

Section 61.1301(1)(b)1 establishes the purposes for which an income deduction order may be used. This statute is in derogation of common law and, thus, must be strictly construed. Spalding v. Spalding, 813 S0. 2d 1078, 1079 (Fla. 4th DCA 2002). It authorizes the use of an income deduction order to “[d]irect a payor to deduct from all income due and payable to an obligor the amount required by the court to meet the obligor’s support obligation including any attorney’s fees or costs owed and forward the deducted amount pursuant to the order.”

See Achurra v. Esperanza Achurra, 36 Fla. L. Weekly D2104.

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.

Generally speaking it is, IF any part of the pension was earned during the marriage.  Specifically, even if one earned only a small percentage of their pension during the marriage it is subject to equitable distribution.

A recent South Florida case dealt with this very issue.  A Husband earned the majority of his pension outside of the marriage.  However, the trial court failed to determine how much, if any, of the pension was a marital asset subject to Equitable Distribution.  Since the trial court did not make any determination as to the marital status of the pension as required by Florida Statute § 61.075(3), the Fifth District Court of Appeal found this to be reversible error. 

It is important to understand that in cases like this it is likely that only the percentage earned during the marriage would be considered a marital asset and the rest would be considered nonmarital.  Thus even though a portion was subject to equitable distribution, it is likely that the vast majority of the pension would have been considered nonmarital and not subject to divide. 

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 a 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.