In a dissolution of marriage case, there are generally five major issues, which we identify according to the PEACE acronym. Those are: Parenting, Equitable distribution, Alimony, Child support, and Everything else. What you can expect is that many dissolution of marriage cases get resolved prior to going to trial, either at mediation or by entering into a Marital Settlement Agreement.

If the parties are splitting assets or money, it is important to keep in mind that the way those items are characterized can have consequences on whether they are enforceable by contempt. For example, if one party agrees to give to the other spouse a particular property or a sum of money, whether it is characterized as alimony, child support, or equitable distribution is very important. An obligation of support, such as alimony and child support, is enforceable by the Court through its contempt powers. However, failure to abide by an agreement which calls for a specific equitable distribution scheme is not enforceable by contempt.

But what happens if the agreement between the parties, or the final judgment adopting the same, does not specify whether a particular obligation is in the nature of support or part of equitable distribution? The court in Morrel v Morrel, 38 Fla. L. Weekly D22a (4th DCA 2013), was recently faced with this question. There, the former husband was required to maintain life insurance pursuant to a settlement agreement. When the former husband failed to do as he agreed, the former wife attempted to enforce the agreement through a contempt proceeding. The final judgment did not provide for alimony or other support for the wife. Because of this, but to no avail, the former husband argued that the life insurance was part of equitable distribution of property and therefore not enforceable by contempt. Due to evidence presented, the trial court agreed with the former wife that the life insurance was in the nature of support, and the 4th DCA affirmed. The result was that the husband was ordered “either to secure the insurance or to deposit cash of an equivalent amount in an account for the former wife’s benefit, should he predecease her.”

As you can see from the Morrel case, one way to avoid these situations is to understand the consequences of any provisions in the agreement, which you agree to sign. If you would like to avoid any ambiguity, be as precise and as clear as possible.

For more information, see Morrel v Morrel, 38 Fla. L. Weekly D22a (4th DCA 2013).

Liridona Sinani is an Attorney with Martin Law Firm, P.L., who practices Family Law and Civil Litigation. She is admitted to practice law in the State of Florida. She primarily practices in Lee County Florida in Cape Coral and Fort Myers, 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.

After Ms. McCready’s hearing in Arkansas this week, WINK News Now returned to Martin Law Firm to further explain the legal implications involved with this case.  Attorney Steven Martin explained that Florida, which is the “home state,” would likely ultimately determine this matter.  However, the Arkansas Judge might delay the return of the child to Florida to investigate, if for example, there were allegations of abuse.

Ultimately this entire ordeal will likely be considered in determining the final custody arrangement within the entire scheme of the best interests of the child.  Attorney Martin speculates that while Ms. McCready may have won a small battle but that ultimately her tactics will not sway the case in her favor.

To see the WINK News story follow the following link where you will be connected directly to WINK News Now’s website: http://www.winknews.com/Local-Florida/2011-12-07/Experts-say-Mindy-McCready-will-have-trouble-getting-custody

Steven E. Martin’s practice focuses on family law, civil litigation, business planning, estate planning and real property law. Mr. Martin is a Past President of the Cape Coral Bar Association and is an active member of the Lee County Bar Association. Mr. Martin is a member of the Florida Bar’s Judicial Administration and Evaluation Committee, and the Calusa Chapter of the American Inns of Court. Mr. Martin is admitted to practice in the state of Florida and in the Federal Court for the Middle District of Florida. Mr. Martin practices in Lee County Florida in Cape Coral and Fort Myers, Florida and in Collier County Florida in Naples.

WINK News Now asked Martin Law Firm attorney Dustin Butler to explain issues regarding child custody matters to local viewers.  Specifically, Mr. Butler explained what a “pick-up” order means.  “A pick-up order is essentially the court ordering law enforcement to bring a child back to this jurisdiction.  To issue a pick-up order the court needed to have already made a time-sharing or custody determination.”

Mr. Butler went on to explain that the overriding priority for Florida courts is the “best interests” of the child.  The court will consider what is in the best interests of the child above all other concerns.  When asked to explain how the court would view a parent who violated a court order resulting in a pickup order Mr. Butler was quoted saying “we’re dealing with parents not behaving properly and the court will consider that within the grand scheme of what is in the best interests of the child.” 

To see the WINK News story follow the following link where you will be connected directly to WINK News Now’s website:

http://www.winknews.com/Local-Florida/2011-12-02/Missing-persons-flyer-issued-for-Zander-McCready

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.

Time-sharing is a very delicate subject and obviously of the utmost importance to both parents and the child.  It is very important that attorneys, judges, and the parties take this subject very seriously.  Florida law places the priority on the “best interests” of the child.  Specifically,

The best interests of the child are always the paramount concern in child custody and time-sharing matter.”

For this reason when one parent refuses to comply with time-sharing, while the aggrieved parent’s interest will absolutely be a consideration, the best interests of the child will still be the priority. Thus the Court must always make findings that their orders are in the best interest of the children.

However, there are several sanctions the Court can impose.  First the Court can always order the offending party to pay the other spouse’s attorney’s fees and costs in enforcing the time-sharing.  Second, the Court may

after calculating the amount of time-sharing improperly denied, award the parent denied time a sufficient amount of extra time-sharing to compensate for the time-sharing missed, and such time-sharing shall be ordered as expeditiously as possible in a manner consistent with the best interest of the child and schedule such tune-sharing in a manner that is convenient for the parent deprived of time-sharing.”

This remedy requires the careful balancing of awarding necessary make up time-sharing while doing so in a manner which is in the best interests of the child.  For example, it may be inappropriate for the Court to order an immediate full custody change in the middle of the school year.  However, if it is in the best interest of the child, this is a remedy which the Court may impose.

Finally the Court can find criminal contempt and impose a sanction of incarceration.  In a recent case the Court ordered five (5) days incarceration for the willful disregard for the Court’s time-sharing order.

Even in an unpleasant divorce it is crucial that both parents maintain the goal of achieving what is in the best interest of their child. 

See, Cheek v. Hesik, 36 Fla. L. Weekly D2378 (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.

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.