If you are seeking a court order to modify time-sharing or custody determination provisions set forth in your mediated settlement agreement, you must prove to the court either that (1) there are facts concerning the welfare of the child that the court did not know at the time that it entered its original order or (2) that there has been a substantial change in circumstances. If you are relying on the second test, you must not only show that the circumstances substantially and materially changed since the original order but also that the requested change in time sharing or custody determination is in the best interests of the child. Your burden of proof is to provide competent substantial evidence in support of your position.
In a recent case decided by the Third District Court of Appeal (3rd DCA), the husband and wife had entered into a mediated agreement whereby the parties agreed to have shared parental responsibility of their minor children and the mother’s residence was designated as the primary residence for the children. About five years after the court entered its final judgment adopting the mediated agreement, the father sought to change the final judgment, particularly the provisions relating to time-sharing and primary residence of the minor children. The father’s arguments for substantial change in circumstances were “parental alienation” by the mother. The crux of the father’s argument was that the older child, as allowed by the mother, had such control over the younger siblings that it detrimentally interfered with the father’s relationship with the younger children.
Relying on the testimony of a clinical psychologist, the trial court held that the father’s allegations of “parental alienation” were “confirmed by [the psychologist].” Due to this, the trial court ordered that the younger children immediately be transferred to the father’s residence and awarded sole parental responsibility of the younger children to the father. The 3rd DCA did not find this ruling to be supported by competent substantial evidence. Upon its own review of the psychologist’s testimony, the 3rd DCA found that that although the older child made every attempt to impair the younger siblings’ relationship with their father, the mother would in fact encourage a relationship between the children and the father. Additionally, the 3rd DCA did not find that the immediate transition of the younger children’s residence from the mother to the father, as ordered by the trial court, was in the best interests of the minor children.
Therefore, it is important to keep in mind that if you are seeking a post-judgment modification of a time-sharing or custody provision in a mediated agreement, you must not only prove a substantial change in circumstances, but also that the requested relief is in the best interest of the child(ren).
For more information, see Sueiro v. Gallardo, 38 Fla. L. Weekly D63 (Fla. 3rd DCA, 2012).
Liridona Sinani is an Attorney with Martin Law Firm, P.L., whose practice focuses primarily in Family Law. 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.
If I attended a mediation pro se, do I have a chance for attorney review before my agreement is binding?
With the new year come new Family Law Rules of Procedure. In a recent Florida Supreme Court opinion, Florida Family Law Rule of Procedure 12.740(f), which provided for a ten day review period for counsel who was not present when a mediation agreement is reached, was deleted. The rule previously stated that if counsel of record for any party was not present at mediation when an agreement was reached, such counsel has ten days from the service of the copy of the agreement to serve written objections on the mediator, unrepresented parties, and counsel. However, beginning January 1st, 2013, this provision is no longer available.
What exactly does this mean and how does it impact you? Admittedly, mediation can be a costly event. As such, parties under dire financial circumstances may choose to forgo having representation at mediation and instead opt for their attorney to review the agreement and file any objections later. With this new opinion, parties no longer have that 10 day safety net provided by Rule12.740(f). What this means is that in order to ensure that are fully advised of your rights prior to reaching any binding agreements it is best to have counsel present at mediation. However, if your financial circumstances forbid you from doing so, then make sure to incorporate a provision in your mediation agreement allowing for attorney review before you sign the agreement.
For more information, see Supreme Court of Florida Case No. SC11-1454.
Liridona Sinani is an Attorney with Martin Law Firm, P.L., whose practice focuses primarily in Family Law. 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.
Eviana Martin, an attorney at the Martin Law Firm, P.L. has recently attended the 20th Annual Bankruptcy Law Convention organized by the National Association of Consumer Bankruptcy Attorneys in San Antonio, Texas.
One of the topics discussed at the conference was “The Big Freeze” referring to Wells Fargo a/k/a/ Wachovia Bank putting a hold on the individual’s bank account if that individual files for bankruptcy protection. The bank is fast at putting a hold on the bank account even if the individual filing for bankruptcy protection does NOT owe any money to the bank and even if the funds are claimed as exempt in bankruptcy. It does not matter if you are filing Chapter 7 or Chapter 13 bankruptcy, just the fact of having any funds in the Wells Fargo bank account is enough for the bank to “freeze” the account. The bank “preserves” the money in the account for the bankruptcy trustee. An individual can prevent this from happening by withdrawing the funds from the bank account before filing the bankruptcy case. Eventually the funds will be released back to the debtor and the hold will be lifted, but this process might take several weeks and if the money in the account were intended to be used to pay the utilities bill or mortgage, by losing access to these funds an individual’s payments might be jeopardized.
Another hot topic discussed at the conference was the recent state and federal foreclosure settlement with five of the U.S. largest mortgage servicers including Bank of America, Citi, JPMorgan Chase, Ally/GMAC, and Wells Fargo banks. The settlement applies to the homeowners in the State of Florida whose loans were serviced by the above mentioned loan providers and who were harmed by the bank’s unfair mortgage servicing practices and foreclosure abuses. The logistics of the settlement awards and the application procedures and requirements are still in the workouts. The settlement is intended to provide mortgage relief and direct payments to the Florida borrowers. The settlement consists of two segments- one is the federal settlement in the amount of approximately $25 billion dollars and second is a portion of the settlement in the amount of estimated $8.4 billion dollars available to Florida residents who meet the application criteria and have mortgages with one of the five servicers listed above.
Homeowners who are current on their mortgages but who owe more than the property is worth, will also be evaluated for possible eligibility for mortgage modifications and principal reductions to the first and second mortgages. Qualifying homeowners who lost their homes in foreclosure lawsuits from January 1, 2008 to December 31, 2011 might also be eligible to receive cash payments. The settlement will also address the future loan servicing practices and will require the loan servicers to comply with a stricter mortgage servicing standards. The settlement does not release the banks from the criminal liability or individual claims from the borrowers or class action lawsuits.
The settlement Monitoring Committee, consisting of numerous State Attorney Generals, is currently looking to select a settlement administration companies that will be in charge of receiving and reviewing the claims for the settlement benefits. The Committee will also overview the bank’s compliance with the settlement provisions and deadlines, imposing penalties and fines for non-compliance. The Committee estimates that the review of the claims will start as early as June 2012 and will continue for the next six to nine months.
Since the duration of this agreement is limited to three years, homeowners are encouraged to contact their lenders directly to inquire about the application process and the qualifications for the mortgage modification programs or monetary awards. Listed below is contact information that will help you to further inquire into the workouts of the settlement agreement:
For the further information regarding the financial restitution for the borrowers who lost their home in foreclosure between January 1, 2008 and December 31, 2011, contact the Attorney General’s Office at www.myfloridalegal.com.
For the loan modifications and refinancing options for borrowers who are current but underwater on their homes, contact the banks directly:
Bank of America: 877-488-7814
JPMorgan Chase: 866-372-6901
However, if your loan is owned by Fannie Mae or Freddie Mac, you are not affected by this settlement. If you are not sure whether your loan is owned by one of these servicers, check their websites:
Fannie Mae at http://www.fanniemae.com/loanlookup
Freddie Mac at http://freddiemac/mymortgage
Eviana Martin is an attorney with the Martin Law Firm, P.L. Her practice focuses on Bankruptcy and Consumer Law. She is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. She represents clients from Lee, Charlotte and Collier Counties at the firm’s offices in Fort Myers, Cape Cora, North Fort Myers, and Naples, Florida.
MARTIN LAW FIRM ATTORNEYS RECEIVE LEGAL ELITE RECOGNITION
The Martin Law Firm, P.L. of Cape Coral, Florida is proud to announce that Steven E. Martin, Eviana J. Martin, Jonathan Bierfeld, Dustin M. Butler, and Patricia Dills have all been named to Florida Trend’s Legal Elite Up and Comers.
Florida Trend recognizes a prestigious list of approximately 2% of the active members of the Florida Bar who practice in Florida. Active members of the Florida Bar were asked to name attorneys whom exemplify the standards of Legal Elite and would recommend to others. Top vote getters then had their disciplinary records reviewed and finally were reviewed by a panel of previous winners.
When asked about this award, Steven E. Martin of the Martin Law Firm said, “It is a great honor to have all of our attorneys under the age of forty recognized for this prestigious award. I believe it is recognition of the caliber of legal representation provided by our attorneys.”
With offices in Naples, Cape Coral, Fort Myers, and North Fort Myers, Martin Law Firm, P.L. is a full service civil law firm. Martin Law Firm, P.L. provides legal services for Divorce, Family Law, Bankruptcy, Personal Injury, Real Estate, Estate Planning, Business Services, Probate Administration and Civil Litigation. Visit their website at www.martinlawfirm.com for more information.
Steven E. Martin received his undergraduate degree in Business Administration from the University of Florida Warrington College of Business and also received his J.D. from the University of Florida Levin College of Law. Steven has previously served as the President of the Cape Coral Bar Association. His practice focuses include Estate Planning, Civil Litigation, Business Planning, Family Law, and Real Property Law.
Eviana J. Martin began her studies internationally and graduated with a dual Bachelors of Arts degrees in Business Administration and Photography from Barry University. She then received her J.D. from the University of Florida Levin College of Law. Her practice focuses on Family Law and Bankruptcy.
Dustin M. Butler graduated from the Indiana University-Purdue University-Indianapolis (IUPUI) with a degree in Political Science. He then attended the University of Florida Levin College of Law where he received his Juris Doctorate. Dustin now specializes in Family Law and Civil Litigation.
Patricia Dills received her both undergraduate degree, a Bachelor of Arts in English, and her law degree from Brigham Young University. She has practiced as an Attorney Ad Litem and now primarily focuses on Family Law and Civil Litigation.
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.
One of the purposes of the probate process is to manage debts owed to creditors of the deceased andto see that creditors are paid – to the extent that is legally and financially possible. The legal procedurefor probate provides a process to manage and cut off claims against the deceased that are filed morethan three months after the publication of a Notice To Creditors in the newspaper, or more than thirtydays after service of the Notice on a creditor, if that is later. Most debts of the deceased are barred andunenforceable after two years from the date of death. Recently the Second District Court of Appeals inFlorida issued a ruling that emphasizes the need to properly follow the claim procedure if you are owedmoney by the deceased. Watch the dates as you read the following paragraph.
Edward Caulfield died on December 18, 2006. A probate administration was started and on November16, 2007, a Notice To Creditors was published. The court opinion dos not explain why so much timewent by before publication. Under Florida law the end of the creditor claim filing period was February16, 2008. A creditor, Mr. Lubee, filed a late claim on December 18, 2008, ten (10) months after theclose of the claim filing period. Note, this is the point after which the two year bar on collection of adecedent’s debts also takes effect. Then Mr. Lubee sued the estate on February 5, 2009, no doubtbecause payment had not been forthcoming. Judgment was entered in favor of the estate at the CircuitCourt level and affirmed on appeal. Why? Because Mr. Lubee didn’t file a claim within the three monthsand never asked the probate court for permission to file a late claim within two years of the death ofMr. Caulfield.
What can we learn from this case? First, if a deceased person owes you money, get legal advice about how to enforce that claim. Second, as a creditor, time is your enemy. You can even file a caveatwith the court to get notice when a probate administration is started, before a Notice To Creditors ispublished. If you are filing late, you must first ask for the Court’s permission. Third, if Mr. Caulfield hada revocable trust based estate plan and the trustee saw no need to file a probate and if Mr. Lubee fileda suit within two years of Mr. Caulfield’s death, he might have been able to collect. Trusts do not bnefitfrom the two year cutoff in probate law.
For Thomas E. Shipp Jr., some of his best days are when clients write him a note saying thank you.
Shipp, an attorney with more than 30 years of experience in wills, trusts and estate planning, said he works with families dealing with difficult situations when a loved one passes.
“They’re relying on their confidence in me,” Shipp said.
Shipp, who has worked in Southwest Florida since 1980, recently joined the Martin Law Firm’s principal office in Cape Coral. He said he’s very happy with the new affiliation.
“It’s very exciting to go from a history of a solo practice and small partnerships to an organization that’s a group practice where a client can get many services under one roof,” Shipp said.
The Martin Law Firm is run by husband and wife team Steven E. Martin and Eviana J. Martin. The firm also has offices in Fort Myers and Naples. Steven Martin said he’s glad to have Shipp’s level of experience added to his firm.
“Tom’s been in practice for 30 years and we haven’t,” Martin said. “It’s exciting for us to get Tom’s depth and breadth of experience.”
Eviana Martin agreed, adding, “It’s important to get someone with experience in wills and trusts.”
Shipp, who has been at the firm for almost two months, said with a laugh that he’s getting all the old man jokes in the office. He said that in some firms, lawyers can be territorial but at the Martin Law Firm it’s more like a family.
“What’s really impressed me here is Steve and Eviana created a tight team, working together and helping each other out. I think it’s very unique,” Shipp said.
Although he jokes around in the office, Shipp is serious about his profession. He said that he focuses on the needs of clients in order to gain their trust because they rely on him to make the proper arrangements. He said you don’t get that reassurance when you prepare the documents yourself on the Internet.
“I want to be here when a person decided I need an attorney for a will or a trust,” Shipp said. “It’s part of the ability (of the client) to sit down and get personal advice from someone you have confidence in. With us, you don’t get a printed set of directions, or a toll-free number to call, you get a person.”
Shipp said some of the hardest hurdles he has to overcome are documents that were not properly prepared and he said these documents often affect the family members who have been left behind.
“It’s not just about the money the people inherit based on those documents,” he said. “It’s about the relationship of the family and how conflict can tear those relationships apart or how this moment could bring people closer together.”
All too often our clients come to us and are unaware of the actual process of filing for bankruptcy protection. We have simplified the steps of a bankruptcy into a few core stages along with what we require of you as part of this process.
CHAPTER 7 FILING ROADMAP
1. Pay attorney’s fees in full, gather all required documents, schedule an appointment for a Questionnaire Review, and write down questions for the attorney.
2. Provide any additional documents requested at the Questionnaire review, take the Credit Counseling Course at Debthelper.com, and appraise your jewelry and vehicles that you plan to keep. Our office will give you a call to schedule an appointment to sign your bankruptcy petition once it is ready.
3. On the date of filing your bankruptcy petition our office will give you a call to get the current balances for all of your bank accounts (personal and business). You will be provided with the case number once your bankruptcy petition is filed.
4. About a week after your petition is filed, a bankruptcy Trustee and a date for the 341 Meeting of Creditors will be automatically scheduled by the court. The meeting usually will take place in about 30-45 days after filing. You will receive a letter from our firm reminding you about the date, time, and the place of the meeting. Any additional documents required by the Trustee have to be provided to our office fifteen (15) days prior to the meeting with the Trustee. You have to attend the meeting in person and bring your original Social Security card and Driver’s License to show to the Trustee. At the meeting the Trustee will ask you questions about your assets, liabilities, income, expenses and other questions pertaining to your specific case.
5. Please provide our office with additional documents that the Trustee might request after the Meeting of Creditors. The Trustee has 30 days to file an objection to a claim of exemption in your case and arrange an appraisal of your personal property. This appraisal might take some time so please be patient. The court will consider you over-exempt when you want to keep non-exempt assets, or want to keep more property than you are allowed to keep under the applicable Florida or Federal Law. The Trustee will then send us a Stipulation for Repurchase of Assets which is a letter stating how much money, if any, you are over-exempt in your case. The total amount of this overage will have to be repaid over the next 12 months in equal payments or you can repay the whole amount at once. You will have an option to surrender some of the assets if you do not plan to keep them. If you are considered over-exempt, you will also have to surrender a whole or a pro-rated portion of your tax refund to the Trustee. We will notify you as soon as we receive this letter from the Trustee, but it might take some time so please be patient.