15 YEARS IN BUSINESS!

I can hardly beleive that 15 years ago this week I opened my law office.  I cannot even remember all the changes since then.  However, some do stick out in my mind.  For example, my Husband and I welcomed 2 beautiful additions to our family in the intervening years.  We moved the office from our first location on West Bay to our current home on Seminole Blvd.  And the economy, well, collapsed.  When I opened my office I had a total of 8 files.  Since then I have the opportunity to represent hundreds of people.  I am so grateful for the chance to contribute to my family, my community and my profession all these years.

Minor Child Passport Application Requirements

Under the two parent consent law, as amended in 2008, and as implemented by the United States Department of State, both parents are required to consent to the passport application for a minor U.S. citizen under the age of 16. In the alternative, the applying parent must document his or her sole authority to obtain a passport by producing one of the following: (a) evidence of sole custody, (b) a court order allowing the parent to travel with the child, or (c) notarized written consent of the other parent or written statement explaining why the non-applying parent’s consent cannot be obtained. The minor child must appear in person when applying for the passport. This law in practice is designed to decrease the likelihood that a U.S. passport would be used to facilitate an international parental child abduction.

Will the Court Credit a Spouse for Money Borrowed During the Divorce Proceeding?

The answer is maybe and maybe. Our district court looked at this issue is the case of Stock v. Stock, 693 So.2d 1080, 1086 (Fla. 2d DCA 1997) and found that "the reimbursement or credit for a party's payment of marital property-related expenses during separation is a matter of judicial discretion in light of all relevant circumstances." The First District Court of Appeal recently relied on this holding in Fashingbauer v. Fashingbauer, 19 So. 3d 401 (Fla. 1st DCA 2009). The issue depends on the answer to (1) what the money was borrowed for and (2) the Judge's discretion depending on the unique facts of that specific case. Marital and family law is, by its nature, very fact intensive which is why case law can serve as a guide but cannot always answer the specific question in your case.

Are too many children prosecuted as adults?

Currently local prosecutors have discretion as to whether or not to prosecute a child charged with a crime as an adult in certain instances. The Florida Bar's Legal Needs of Children Committee recently issued its report and recommended that Judges make all transfer decisions rather than the current practice. This report comes after a noticeable increase in the number of children prosecuted in adult court. The other issue noted in their report was whether or not coercive pleas are taken. The example observed is that a child may given the choice between pleading guilty and serving 9-18 months in juvenile detention or be prosecuted as an adult facing a life sentence and wait about 18 months in jail for trial in the interim. While being tough on crime is clearly a popular sentiment the question remains whether it is helpful or appropriate to push so many juveniles into the adult system. Unfortunately in our office we often see children acting out and sometimes getting into trouble with the law when the parents are in high conflict. Reducing that conflict so that parents are able to effectively co-parent not only benefits the parents but also the children and our society.

Changes made to Income Deduction Orders

The statutory changes recently enacted by the Florida Legislature require certain additional findings to be set forth in Income Deduction Orders (IDOs). IDOs are the Orders that require employers to withhold income from an employee's pay when that employee owes a child support and/or alimony obligation. Back in 1998 IDOs were statutorily required in all cases involving child support. The new changes in the law require that the end date for child support be set forth specifically in the IDO. The changes also require that in cases where there is more than 1 child the IDO set forth the specific date when child support shall be reduced due to an older child being an adult; the new reduced amount of support must be listed also. Today the Florida Supreme Court issued a proposed form to help us all comply with the new statute.

Major Changes Made to Alimony and Child Support Statutes

This past session the Florida Legislature passed major legislation that makes substantive changes to Florida's alimony and child support laws. Governor Crist has signed the bill which becomes effective later this year. An overview of the changes are as follows:

(1) Creates a new type of alimony called "durational alimony;"
(2) Changes the threshold for triggering substantial time-sharing (which generally greatly reduces child support paid);
(3) Mandates certain findings of fact related to unallocated child support for multiple children;
(4) Establishes very specific requirements to impute income to a parent;
(5) Addresses poverty guidelines;
(6) Makes changes in the adoption laws; and,
(7) Addresses assignment of time-sharing by military personnel.

Are Private Disability Insurance Policy Payments Marital Property?

Our Second District Court of Appeals looked at that issue in the Gibbons case decided last month. See Gibbons v. Gibbons, 10 So. 3d 127, (Fla. 2d DCA 2010). In that case the Husband who had been an attorney became disabled prior to the filing of the divorce action. As a result of his disability he received payments from 3 disability insurance policies he purchased and paid for during the marriage. One of the policies ended payments when he reached the age of 65 while the other 2 policies did not. The 2 other policies continued payment with no set end date as long as the Husband remained disabled. The Wife argued at trial that since the Husband would be receiving payment from the 2 policies after he reached the age of 65 the payments were akin to retirement payments and therefore subject to equitable distribution. The lower agreed with her and awarded her 1/2 the value of the 2 policies in question.

The appellate court disagreed and reversed the trial court's decision. The appellate court held that there was no evidence that the payments made to the Husband after age 65 contained a retirement component and were subject to the condition that he remained disabled; therefore the payments was the Husband's separate income and not subject to division.

Proposed Budget Cuts for Clerk of Court

I recently received a notice from Ken Burke, the Clerk of Court for Pinellas County, advising of a bill pending in the Florida Legislature to dramatically cut funding to the Clerks' offices. Though I do not remember the precise amount of the budget cut Mr. Burke did advise that last year due to budget cuts the Clerk's office laid off approximately 28 people and if this bill passes the cuts this year will have to be twice as much. I recognize the financial constraints we are all under these days including our government. Cuts seem to be the foregone conclusion. Though it is clearly sad for the employees who may get a pink slip the public using the civil court system will also suffer a great deal with delays and inefficiencies due to the lay offs. If there is less money the Clerk will have to re-prioritize where employees work. There are mandates that ensure the criminal court system will be funded first. Therefore the primary place the pain of the budget cuts will be felt is on the civil side. It will likely mean significant delays in information processing.

Is He/She Going to Have to Keep Paying for Private School Tuition?

Florida's Fourth District Court of Appeals took up this issue last month in the case of Gelman v. Gelman. In this case the parties agreed to a timesharing plan and the Court incorporated that agreement in the final judgment. The Father was ordered to pay child support and a lump sum payment to the Mother instead of alimony and equitable distribution. The Father was also ordered by the Court to pay the children's private school tuition. The Father appealed and argued that the Mother never pled for school tuition. The Mother stated that the agreed upon plan specifically mentioned the private school tuition and that plan was incorporated into the Court's final judgment.

The higher Court reversed the lower Court's ruling and found that the Mother had not specifically pled for it and that there was no evidence to show that the Father had agreed to pay it. Additionally the appellate Court held that the trial Court had not properly analyzed the requirement before imposing a financial responsibility for private school tuition. The Court cited Wilson v. Wilson, 559 So.2d 698 (Fla. 1st DCA 1990) which held that to order private school tuition (1) the parent must have the financial ability to pay it, (2) the expenses must have been in accordance with the family's customary standard of living, and (3) private school must be in the children's best interests.

Can Having a Boyfriend Reduce Former Wife's Alimony Award?

Alimony is based on one party's need for support and the other party's financial ability to meet that need. Florida's Fourth District Court of Appeals examined the issue of whether having a boyfriend would reduce the former Wife's alimony award late last year in the case of French v. French, 4 so.3d 5 (Fla. 4th DCA 2009). The Court ruled in that case that the boyfriend relationship that was, in fact, a financially supportive relationship for the former Wife. As such it took the financial place of a remarriage. Therefore that relationship inherently affected (reduced) the former Wife's need for alimony. The result suggests that once the Court finds that a "supportive relationship" exists then by necessity the Court shall either reduce or end alimony because the recipient's needs have changed.

Can DOR Be Prohibited From Intercepting a Tax Refund to Pay Past Due Child Support?

Florida's First District Court of Appeals looked at this issue in the case of DOR v. Baker decided on December 31, 2009. In that case the Father owed over $26,000.00 in past due support. Nonetheless he had convinced the lower court to prohibit the Department of Revenue (DOR) from intercepting all but $1,000.00 of his federal income tax refund. He had also prevailed in his request to claim the dependency exemption over the Department's objection. The higher court reversed the lower court stating that the Father had not (1) properly presented his claim, (2) had not properly noticed the Department, (3) had not used up all potential administrative remedies and (4) that his request was premature. Moreover the appellate court found that in all events the Father was still not entitled to the relief given him because the trial court could not lawfully place any restrictions on the power delegated by federal law to DOR relating to interception and retention of tax refunds.

Can I Get Advance Permission from the Court to Relocate?

That sounds like a good idea for those "forward thinking" people who like to plan well in advance like me but the legal answer seems to be no. The Florida Supreme Court issued a ruling on January 14, 2010 in Arthur v. Arthur, SC08-1675 that runs contrary to this thought process.

In this case the trial court had awarded the mother primary custody of the parties' 16-month-old child. The mother had requested permission to move to Michigan with the child and the trial court agreed with the request, but only when the child turned three, finding that the child needed more time to bond with the Father. The Father appealed and the Second District Court of Appeals affirmed the lower court's order. The Father than appealed to the Florida Supreme Court.

The Florida Supreme Court found that the trial court was required to make findings as to what is in the child's best interests at the time of the trial not based on future possibilities. The Court further held that the lower court was incapable of predicting whether a future relocation, months or years in the future, would be in the child's best interests at that time. The Court instructed the trial court to remove the relocation provision. In their holding the Court indicated that the Mother is able to seek to relocate in the future by filing a modification action, but any modification action would be governed the two-part substantial change test. That test requires the movant must show both that (1) the circumstances have substantially, materially changed since the original custody determination and (2) that the child's best interests justify changing custody. Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original Court Order.

When might "Nominal Alimony" be awarded?

This question was answered by Florida's 1st District Court of Appeal in November of last year in the case of Welch v. Welch. This opinion was written to replace and clarify the Court's earlier ruling. The facts of this case are: The parties had a 23-year marriage with the Husband earning $140,000 per year in income and the Wife earning $85,000 per year in income. The Wife had requested permanent periodic alimony but the trial court awarded the Wife nominal alimony of $1.00 per year instead. The Wife appealed the case and argued, in part, that there was insufficient evidence to support the lower court's determination that she earned $85,000. The appellate court upheld the lower court's ruling stating that the lower court had not abused it's discretion. Abuse of discretion is the standard of review. The higher court looked to the statutory definition of income, the evidence before the trial court (including the Wife's 2007 income, a forensic accountant's testimony, evidence of a cost of living increase, etc...) and found that there was substantial evidence in support of the lower court's decision.

2010 Statutory Interest Rate Set

Florida's Chief Financial Officer, Alex Sink, has announced that effective January 1, 2010, the interest rate for judgments and decrees, pursuant to sec. 55.03, Florida Statutes, shall be six percent (6%), down from the 2009 rate (8%). It's easy to forget what the judgment rates were for years past, but the CFO's website has a listing of historical rates from 1995 forward (from 1981 through 1994, the rate was 12%).

Christmas-time Community Service

In addition to the usual holiday baking, caroling, and shopping, one of things I enjoy doing most with our children at Christmas time is helping others. The past few years we have volunteered to ring bells for the Salvation Army through the Clearwater Bar Association. I am fully convinced that adding my two sweet cherubs increases the donations significantly, especially when they sing. The other thing we enjoy is strolling around looking at the lights in our neighborhood. Not only are they beautiful but they are used by the community to raise money for the Hospice of the Florida Suncoast, an amazing organization. If you're in Largo drive through anytime after dark until 10 p.m. but be sure to follow the directional arrows so you can get in and out without trouble. Check out Lake Park Lights for directions and Merry Christmas!

Am I entitled to part of my spouse's military retirement benefit?

The answer to that question depends on specific facts in your case. For example:

How long is the marriage?

How long was your spouse in the military?

Did the time periods overlap?

Is the retirement payment already in pay-out status?

Is any portion retirement payment reduced by a service related disability payment or might he or she take that option in future?

Note: A veteran can receive anywhere between 10 and 100 of his or her retired pay in the form of disability pay. There are a number of ways to address these issues but it must be examined carefully before a Final Judgment is issued.

Thankfulness

My absolute favorite holiday is the one we just celebrated - Thanksgiving. My children think I am nuts to choose that one as my favorite. "What about presents at Christmas? Candy at Halloween? Or Valentines in February?" They say. But to me Thanksgiving conjures up memories of being at Kickup, our family farm, outside Atkinson, North Carolina with my Grandmother and Granddaddy Moore, my Aunts and Uncles and all my cousins. We ran in the corn fields, played in the pond, and dressed up in Aunt Trish's old prom dresses. My family has since sold that farm but the memories of those fun times will always be with me. I am thankful to have them.

Pinellas Clerk and Property Apprasier Unity to Provide Better Technology

Pinellas County's Clerk of the Circuit Court, Ken Burke, and Property Appraiser, Pam Dubov, have each added a new function to their respective websites, making each site a more powerful and useful tool, especially for those in the real estate, title, or insurance industries.

Many people who use the Property Appraiser’s website, www.pcpao.org, need to view a parcel’s deed, but deeds are stored on the Clerk’s website, www.mypinellasclerk.org. To facilitate this need, the Property Appraiser added links that go to the Clerk’s site. These new links can be found near the sales transaction information on the Property Appraisers site. Customers can now follow these links directly to an image of the parcel’s deed. If the deed is not in the system and an electronic image is not available, a message displays alerting the customer. Similarly, on the Clerk’s website, links from the Official Records Search Page will redirect customers to the Property Appraiser information associated with a particular parcel.

Can a "nonsutodial parent" claim the federal income tax exemption for the children?

The answer has usually been yes, if agreed upon by the parties or ordered by the Court. The answer is still yes but the requirements to be able to do so have changed. On June 19, 2009 the IRS issued Chief Counsel Advice Memorandum No. 200925041 and this changed the requirements needed for a noncustodial parent to claim a child exemption. For tax years after July 2, 2008, attaching a copy of the Final Judgment that transfers the exemption to the noncustodial parent as long as certain conditions are met (such as the parent having been current in child support) is not sufficient and the exemption will be disallowed. IRS form 8332 is now required or, alternatively, "a document that conforms to the substance of Form 8332 and that has as its only purpose the release of a claim to the exemption." For those whose Judgments occurred prior to July 2, 2008, the Judgment itself is good enough only if it allows the noncustodial parent to claim the exemption unconditionally. The best practice should now be that an agreement contain certain language requiring IRS form 8332 be executed for a given year when the conditions for it have been met, together with enforcement language like sanctions and/or fees.

Wrangling Over Control of Court Technology

Sadly our state courts has failed to keep up with technology as far as electronic access for filing and reviewing documents. Now though this issue is apparent and rules regarding the same have been drafted, the fight for control of the process has slowed us down once again. The elected Clerks of Court and the court system have both staked a claim to control of the Internet "portal." I know they are communicating and trying to come to a resolution. Let's hope the dispute can be resolved more quickly than most as Floridian legal consumers stand to benefit significantly from the technology we now have available.