Are your medical records still confidential in a divorce case?

The short answer is maybe not. A California appellate court ruled on this issue last week in Manela v. Superior Court, No. B21447. In that action, the parties were in the middle of a dissolution action that included a dispute over child custody. One party moved to quash subpoenas related to their medical records arguing that they were protected by doctor-patient privilege. The lower court had agreed and had, in fact, quashed the subpoenas. But the appellate court reversed the decision ruling that the constitutional right to privacy regarding medical records is not absolute and the party's privacy interests are outweighed by the state's compelling interest in protecting the child's best interests.

Dependency Case Law Update

Dependency law is a sub-category of family law. Actually some would say it is a quasi-criminal quasi-civil category on its own. This type of case is where child abuse or neglect is alleged, usually by the State (the Department of Children and Families [DCF]), but not necessarily. Chapter 39 of the Florida Statutes governs these matters.

An interesting new case is this area was published as a result of an appeal this year in the 5th District Court of Appeal. In B.T. v. D.C.F., the child at issue was adjudicated dependent based on a finding that the Father had abandoned him. The Father was incarcerated since before the birth of child and was not scheduled to be released until 2011. At the time of the hearing the child was 5 years old. The Father was the only witness at the hearing. He testified that he regularly received photos and updates about the child from family members, and that his failure to pay child support was due solely to his incarceration. The appellate court upheld the adjudication of dependency but held that the finding of abandonment was not supported by the evidence. The Court stated that the Department of Children & Families had presented no evidence other than incarceration to support a finding of abandonment and that incarceration alone was insufficient to support the finding of abandonment. The Court states in its opinion that "We do not suggest that [the child] was not abandoned by Father; merely that there was a failure of proof of abandonment."

This case is a reminder of the key in preparing proper evidence and testimony even where the end result may seem obvious.

Law Office Location

Our office is located in the heart of Pinellas County at 801 West Bay Drive in the Wachovia Bank Building. (Pictured above.) It is only minutes from the downtown civil courthouse in Clearwater where most of our cases are heard. It is also located in the same community where I and my staff live so we are familiar with the schools, organizations and activities here in Largo and the surrounding towns. The picture shown here was taken today on a typical Florida morning. It's sunny, warm and a little on the muggy side. While I doubt you will have any trouble finding us, do not hesitate to call us at (727) 584-2528 if need be.

How old does my son have to be to decide which parent he lives with?

This is probably the most common question I get asked regarding custody issues. The short answer is 18. In Florida there is no age at which a child gets to decide who they live with. The child's preference, if they are deemed of sufficient age and maturity, is just one of 20+ factors the Court looks at when making a custody decision. Apparently there are some states where when a child turns 13 (or some other certain age) they do get to decide. Florida law is directly contrary to that.

Property Value Challenges

If you own property in Pinellas County, you likely received your property assessments this past week. The property appraiser's office mailed the Truth in Millage (TRIM) notices on Monday, August 24, 2009.

The TRIM notice includes the home owner's property taxes, property assessments, and proposed millage rates set by various taxing entities. The market value shown on the 2009 TRIM notice is based on market condition and ownership status as of January 1, 2009 and is determined by analyzing sales that took place in 2008.

Property owners have until Friday, September 18, 2009 to file a petition challenging the notice. For the first time in Pinellas County, property owners who disagree with their property value assessments can file petitions to go before the Value Adjustment Board (VAB) online via the Clerk’s website, www.mypinellasclerk.org, beginning on Monday, August 31, according to Ken Burke, Clerk of the Circuit Court. Other methods of petitioning to go before the VAB are still available. The forms can be accessed online, then mailed or filed in person at the Clerk’s Board Records department located on the fifth floor of the Clearwater Courthouse, 315 Court St., Clearwater or may be dropped off at one of these Clerk’s branch offices: the St. Petersburg Branch at 545 First Ave. N., St. Petersburg; the Tyrone Branch at 1800 66th St. N., St. Petersburg or the North County Branch at 29582 U.S. 19, Clearwater.

The Value Adjustment Board serves as the decision-making authority between the property owners and the property appraiser when there is a disagreement over exemptions, valuations and classifications. Once a petition is filed, a quasi-judicial hearing is scheduled with a special magistrate. For more information, visit the Value Adjustment Board page at www.mypinellasclerk.org or call Board Records at 727-464-3458.

OUTSOURCING a/k/a Do you really know who is representing you?

A relatively new and growing trend in providing legal services is "outsourcing." This is apparently when the lawyer or law firm you hire delegates some of its legal work to someone else generally somewhere else. I do not do this. Of course, I am well aware of this cost-cutting strategy with some businesses, like your telephone company, but I personally do not think it is a good choice for legal work.

As a sole practitioner I develop very close relationships with my clients. I chalk that up to the fact that I am the one and only lawyer you will have representing you if you hire me. Your case will not get bumped down the line to a newer associate or to another colleague. I handle all my cases personally. I also know that the particular area of law I practice makes this personal relationship even more important to most of my clients. They have to share very intimate facts about their lives and families.

The Florida Bar Board of Governors is now considering modifying a prior opinion they gave approving the outsourcing of legal services. It seems like common sense to me that this trend is fraught with potential problems that will ultimately erode public confidence in the legal system. I would love to hear your thoughts.

Child Support & Contempt

Probably in large part because of the downward turn in the economy I am more apt to see cases involving non-payment of previously ordered child support. I have represented clients on both sides of this issue. Sometimes the paying party really cannot afford to pay the support because of job loss or wage decrease or illness or injury. Of course, the reality is the children's needs continue regardless of the economy or life's circumstances. Therefore the Courts often have to make the decisions regarding these difficult issues. There really is no easy solution because each family's needs are different and must be examined individually.

Statewide Electronic Access Approved

At present, each Clerk of Court maintains its own records and computer system for their particular jurisdiction. My office subscribes to access the Sixth Judicial Circuit's computerized records system so that we may access certain records and to see if a suit is filed in a particular case. It has long been debated amongst lawyers and Judges that Florida should implement a statewide system for access to all such documents. The cost and large scale of such a project have resulted in no such program to date. But good news is here. On July 1st of this year the Chief Justice of the Florida Supreme Court issued an Order to set standards for such a system. The Florida Legislature passed legislation that requires such a system, including electronic filing of law suits, to be up and running within a year. Though it may be a cumbersome process, it seems clear this is long over due.

Mandatory Financial Affidavits

A frequent question/complaint I have in amicable divorce cases, is why do I have to file a Financial Affidavit? My general response is because the law says you have to. And now and again I will discuss the multiple reasons why I think it is also a good idea. Today however, I read a case that outlines at least one exception to the "because you have to rule." See Salczman v. Joquiel, 776 So. 2d 986 (Fla. 3d DCA 2001). In that case, which for the record is not out of our appellate court but our sister court to the north, the parties entered into an ante-nuptial agreement after full disclosure. Both parties had separate counsel in the negotiation and execution of the agreement. Both were in their sixties at the time of their marriage; both had been married previously and both were financially secure. They ended their marriage after three years, each party agreeing that the ante-nuptial agreement controlled and requesting that the court ratify the same and grant their dissolution. At the final hearing, the court ordered that the parties file financial affidavits. The parties responded that they should not have to do so in light of their agreement and the fact that neither party was requesting any permanent financial relief from the other. The court indicated that it would seal the affidavits in the court file upon their being filed. The parties still refused, and the Court threatened contempt. The parties jointly appealed. Reading Fla. Fam. L. R. P. 12.285 literally, the Third District reversed the court's order directing the parties to file a financial affidavit. "Having found this agreement to be fair and reasonable on its face and entered into after full disclosure between the parties, the court was presented with absolutely no issue as to permanent financial relief for either party. Thus, the filing of financial affidavits would serve no purpose under the facts of this case and we do not believe that the rule mandates that they be filed." 776 So. 2d at 988.