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.

Are life insurance proceeds recieved after action filed marital?

Florida's 4th District Court of Appeals looked at this issue in Ross v. Ross decided on October 7, 2009. The parties in this case were married for six (6) years before suit was filed. The Husband and his brother had a lawn business before and during the marriage. Both the Husband and his brother owned "key man" life insurance policies naming the other as beneficiary. After suit was filed but before the divorce case was tried, the brother died and the Husband received over $1 million dollars as beneficiary of his brother's life insurance policy. The Wife argued that the proceeds were marital and subject to equitable distribution. The lower court agreed but the appellate court said no. The court reasoned that since there was no asset prior to suit being filed and the event that caused the expectancy to become an actual interest occurred after suit was filed, the proceeds were non-marital.

Evidence is Key

The difference between a conversation and a court hearing often revolves around proof. Proof is the ability of one party to show the Court that what they are saying is accurate. Sometimes the only proof is a person's sworn testimony but obviously, documentary proof or evidence, is preferable. A recent appellate decision out of Florida's 1st District Court of Appeals highlights this issue. In Chaney v. Fife, the Appellate Court decided last month that the slew of mistakes made by the trial court required the case be overturned. The underlying case involved issues of paternity, custody and child support. One of the many identified problems was that he trial court did not have any evidence to support its calculations for each party's federal tax liability. And worse, whatever evidence was presented was not written down by the Court it its findings of fact. Preparation and presentation of the underlying proof of the facts is crucial for trial.

IMMEDIATE INCOME DEDUCTION ORDERS

Florida law with regard to child support has changed effective October 1, 2009. The statute as amended now allows parties to request that child support not automatically be paid by an
income deduction order (i.e. an order making employers withhold payment of child support and send it to the State Disbursement Unit to be then sent on to the other parent) as long as the Court feels that direct payment is in the child's best interests. However, the amended statute also provides that if there is not an immediate income deduction order and there is a failure to pay on time in the future, any party may subsequently file an affidavit with the State Disbursement Unit (SDU) alleging a default. Fifteen (15) days thereafter the SDU shall notify all parties that future payments shall be paid through the SDU. No other court action is required.

KIDS' ANSWERS TO LIFE'S BIG QUESTIONS

I've seen this e-mail or one going around like it a few times. It's funny in and of itself and it's also kind of/sort of true.

It also reminds me of a situation relayed to me by my 7 year old daughter recently. She had one boy in her class that she would say is her "boyfriend" but recently he stepped on her fingers so she said she was through with him and now she's pretending a different boy is her boyfriend. Who can blame her?

HOW DO YOU DECIDE WHO TO MARRY?

"You got to find somebody who likes the same stuff. Like, if you like sports, she should like it that you like sports, and she should keep the chips and dip coming." -- Alan, age 10

"No person really decides before they grow up who they're going to marry. God decides it all way before, and you get to find out later who you're stuck with."-- Kristen, age 10

WHAT IS THE RIGHT AGE TO GET MARRIED?

"Twenty-three is the best age because you know the person FOREVER by then." -- Camille, age 10

HOW CAN A STRANGER TELL IF TWO PEOPLE ARE MARRIED?

"You might have to guess, based on whether they seem to be yelling at the same kids." -- Derrick,age 8

WHAT DO YOU THINK YOUR MOM AND DAD HAVE IN COMMON?

"Both don't want any more kids." -- Lori, age 8

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.