Skilled Family Law Counsel

Divorce In North Palm Beach, FL; Child Support

In a divorce proceeding involving the nonpayment of child support, the initial judicial determination creates a rebuttable presumption that there is an ability to pay. In Fuller v. Fuller, the Florida Court of Appeal recently stated: “Jeffrey Fuller, the former husband, appeals an amended order on Nancy Dubay, the former wife’s motion for civil contempt. We reverse that portion of the trial court’s order finding him in contempt, but we affirm the remainder of the order without comment… 

‘ [T]he initial order or judgment directing a party to pay support or alimony is predicated on an affirmative finding that the party has the ability to pay. This initial judicial determination creates, in subsequent proceedings, a presumption that there is an ability to pay. In a civil contempt proceeding for failure to pay child support or alimony, the movant must show that a prior court order directed the party to pay the support or alimony, and that the party in default has foiled to make the ordered payments. The burden of producing evidence then shifts to the defaulting party, who must dispel the presumption of ability to pay by demonstrating that, due to circumstances beyond his control which intervened since the time the order directing him to pay was entered, he no longer has the ability to meet his support obligations. The court must then evaluate the evidence to determine whether it is sufficient to justify a finding that the defaulting party has willfully violated the court order. Once the court finds that a civil contempt has occurred, it must determine what alternatives are appropriate to obtain compliance with the court order. If incarceration is deemed appropriate, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order.”

Divorce in Boynton Beach, Florida

In a divorce proceeding in which one of the parties seeks to set aside a marital settlement agreement, the trial court should either permit the contesting party to present argument and evidence concerning the adoption of the marital settlement agreement during the final hearing, or alternatively, the court should defer entering a final judgment until a hearing on the contesting party’s motion to set aside the marital settlement agreement has been held. In Giddins v. Giddins, the Florida Court of Appeal recently stated: “Appellant, the former wife, challenges the trial court’s final order of dissolution of marriage in which the court adopted and incorporated the parties’ marital settlement agreement. Appellant argues the court erred in entering the final order over her objection and pending motion to set aside the marital settlement agreement, without first giving her the opportunity to be heard and present evidence. We agree.

The trial court should have either permitted appellant to present argument and evidence contesting the adoption of the marital settlement agreement during the hearing on the former husband’s petition for dissolution of marriage, or alternatively, the court should have deferred entering a final judgment until a hearing on appellant’s motion to set aside the marital settlement agreement had been held. ” ‘Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on his behalf,… and the denial of this right is fundamental error.’ ” Slotnick v. Slotnick, 891 So. 2d 1086,1088 (Fla. 4th DCA 2004) (quoting Pettry v. Pettry, 706 So. 2d 107, 108 (Fla. 5th DCA 1998)). Thus, we reverse the final order of dissolution of marriage and remand for further proceedings. Because we reverse, we find it unnecessary to address the second issue raised by appellant.”

To speak with a divorce attorney in Boynton Beach, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

Divorce in North Palm Beach, Florida

In a divorce proceeding, due process requires that the parties be given sufficient time to call witnesses and to be heard. In Julia v. Julia, the Florida Court of Appeal recently stated: “Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on the party’s behalf… and the denial of this right is fundamental error.” Minakan v. Husted, 27 So. 3d 695,698 (Fla. 4th DCA 2010) (quoting Pettry v. Pettry, 706 So. 2d 107,108 (Fla. 5th DCA 1998)). The opportunity to be heard must be “full and fair, not merely colorable or illusive.” Pelle v. Diners Club, 287 So. 2d 737,738 (Fla. 3d DCA 1974) Additionally, this Court has recognized that justice cannot be “administered arbitrarily with a stopwatch,” yet that is what happened in the instant case. See Woodham v. Roy, 471 So. 2d 132, 134 (Fla. 4th DCA 1985). Throughout the hearing, the trial court made it clear that it intended to complete the trial in one day without going much beyond 5:00p.m. Although this goal is not inherently violative of due process, summarily shortening proceedings can give rise to a due process violation when they fail to afford a party a full, fair, and meaningful opportunity to be heard, such as in this case where the Wife was severely restricted in time to examine witnesses, to call any of her own witnesses, or to make any argument as to the evidence presented…

We note that neither party was given an opportunity to present closing arguments, although Appellant arguably did not preserve a challenge to this denial. In Pettry, the Fifth District stated that “due process [also] requires that a party be given the opportunity to present closing argument.” Pettry, 706 So. 2d at 108; see also Minakan, 27 So. 3 d at 699 (“Even if [a party’ s] evidence would not have impressed the court, a party has the right to present evidence and to argue the case at the conclusion of all the testimony.”). Although a closing argument can be waived (or, perhaps replaced with written closing arguments), Pettry indicates that the opportunity to present one must at least be available to comply with due process. Pettry, 706 So. 2d at 108.”

To speak with a divorce attorney in North Palm Beach, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

Divorce In North Palm Beach, Florida

In a divorce action, in determining venue, the trial court is to look to the single county where the intact marriage was last evidenced by a continuing union of partners who intended to stay and to remain married indefinitely if not permanently. In McGee v. McGee the Florida Court of Appeal recently stated: “Venue transfer orders are reviewed for an abuse of discretion. Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So. 2d627 (Fla. lst DCA 1999). We begin by noting that venue is proper where the defendant is domiciled, where the cause of action accrued, or where the property in litigation is located. § 47.011, Fla. Stat. (2013). “In a dissolution of marriage action, the trial court is to look to the single county where ‘the intact marriage was last evidenced by a continuing union of partners who intended to remain and to remain married, indefinitely if not permanently.’ ” Crawford v. Crawford, 415 So. 2d 870,870 (Fla. 1st DCA 1982) (citing Carroll v. Carroll, 341 So. 2d 771,722 (Fla. 1977)). But a court may transfer any civil action “to any other court of record in which it might have been brought” for the convenience of the parties or witnesses or the interest of justice. § 47.122, Fla. Stat. (emphasis added). See also § 61.13(2)(d), Fla. Stat. (providing that in modification proceedings “[t]he court may change the venue in accordance with s. 47.122.”)…

First, nothing in the order on appeal states that the order was granted based on either of the reasons permitted in the transfer statute…Second, and more importantly, is the fact that the transfer statute- despite providing reasons a case may be transferred-expressly limits the ability of a court to transfer a case to “any other court of record in which [the proceeding] might have been brought.”§ 47.122, Fla. Stat.

To speak with a divorce attorney in North Palm Beach, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

Divorce in North Palm Beach, Florida

Modification of Out of State Order in Divorce Proceedings in Palm Beach County, FL

In a divorce proceeding seeking the modification of an out of state court order, a court may modify a child support order that was issued in another state under certain specific circumstance. In Arquette v. Rutter, the Florida Court of Appeal recently stated: “This court recently explained the circumstances, under the UIFSA, in which a Florida court may modify a child support order issued in another state:

[A]s is the case here, when not all of the parties reside in Florida, a

Divorce in Jupiter, Florida

In a divorce case, captioned Brooks v. Brooks, the Father appealed the lower court’s ruling denying his motion for contempt and ordered him to file a petition to relocate. The Florida Court of Appeal affirmed the trial court’s ruling and explained why. A time-sharing plan was entered by the Court when the parties were divorced in 2011. Under the time-sharing plan, the Mother and Father had shared parental responsibility over the children. The children lived with the Mother during the week and with the Father every other weekend. The time-sharing plan required that if either party traveled out of state with the children, that party must so inform the other party 30 days in advance and provide a travel itinerary. After the divorce, the Father moved from Sarasota to Hallandale Beach. The Mother took two out-of-state trips with the children and did not provide the Father with notice of one of the trips or a detailed itinerary. The Father moved to hold the Mother in contempt of court, and the Mother moved to hold the Father in contempt for moving to Hallandale Beach without filing a petition to relocate. After a hearing on both motions, the lower court denied both motions for contempt and ordered the Father to file a petition to relocate. The Father argued to the Florida Court of Appeal that it was improper for the trial court to deny his motion for contempt after he clearly established that the Mother violated the time-sharing plan.

The Florida Court of Appeal held that under Florida law there is nothing that requires a trial court to hold a person in contempt for violating a time-sharing order, and a trial court does not abuse its discretion simply by refusing to do so. The trial court decided not to hold the Mother in contempt, not for lack of a factual basis, but as a means of discouraging further vexatious litigation in this divorce case between the parties. Because the parties had already demonstrated an intent to engage in such litigious conduct, this decision was not arbitrary and thus did not constitute an abuse of discretion. Even without a valid reason to deny a contempt motion, there is no authority mandating that a court hold a person in contempt even based upon a party’s factually correct motion. Accordingly, the Florida Court of Appeal affirmed the trial court on this issue and reminded the parties that the court can exercise its contempt powers if and when it finds it is necessary to address any future violations of the parties’ marital settlement agreement.

To speak with a divorce attorney in Jupiter, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

Residency Requirements to Obtain a Divorce in Florida

To obtain a divorce in Florida, either the Husband or the Wife must reside in Florida for six (6) months prior to the filing of the Petition for Dissolution of Marriage. A court does not have jurisdiction to decide a divorce case unless jurisdiction is appropriately allege in the Petition for Dissolution and proved at the Final Hearing.

Proof of one of the parties’ residence in Florida can be shown by producing a Florida voter’s registration card, a Florida driver license, a valid Florida identification card issued under section 322.051, or the affidavit or testimony of a nonparty witness. The parties’ residency cannot be proven by the testimony of one of the parties. Residency cannot be assumed. The parties cannot agree that residency exists. And, the parties cannot waive proof of residency. Without proof of residency, a trial court lacks jurisdiction to enter a Final Judgment of Dissolution of Marriage.

To speak with a divorce attorney in Boca Raton , Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

Keeping the Family Home in a Divorce in Palm Beach Gardens, FL

In a recently decided divorce case, the Florida Court of Appeal decided who gets to keep the family home when there is a divorce. In a case captioned Walker v. Walker, the Florida Court of Appeal stated that as a general rule, absent special circumstances, the trial court should award to the primary residential parent exclusive use and possession of the marital home until the youngest child reaches the age of majority or is emancipated, or the primary residential parent remarries. Special circumstances include where the parties’ combined incomes are insufficient to meet their normal living expenses, obligations, debts and the cost of maintaining the marital home. Exclusive use and occupancy will not be awarded where the former husband and former wife do not have a sufficient combined income to maintain the marital home and meet their obligations. Florida statutes require courts to assess the desirability of maintaining the marital home as a place for the children to live when it is equitable to do so, it is financially feasible, and it is in the children’s best interest. In reaching this decision, divorce courts are to first decide whether it is in the best interest of the children to stay in the marital home, and, if not, whether other equities are served by giving the other spouse exclusive use and possession of the parties’ marital home.

To speak with a divorce attorney in Palm Beach Gardens, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

DIVISION OF BUSINESSES IN A FLORIDA DIVORCE

Divorce proceedings in Florida often involve the division of businesses.  Courts typically effectuate the division of property and assets in a Florida divorce in such a manner as to allow the operating spouse to retain his or her ownership in the business.  Florida Courts will not require spouses to remain in business together when one or both spouses do not want to continue to do.  Courts will not award each spouse a one-half interest in a business and require them to continue to be business partners. 

In a Florida divorce, courts will obtain a proper valuation of the business and award the business to one of the spouses.  The court will then devise a plan of equitable distribution that is fair to both parties and that causes the least amount of interference with the business.  The court will award the business to one of the spouses and require that spouse to fairly compensate the other spouse.

In a case captioned Bowen v. Volz, the lower court divided a business owned by a husband and wife. The trial court awarded each party a fifty percent interest in their business. The Florida Court of Appeal reviewed this decision and began by commenting on the lack of evidence that was presented to the trial court concerning the value of the business. The Florida Court of Appeal then reversed the trial court.

Default Judgments In Florida

In a child custody proceeding, a judgment can be issued against a party who fails to appear at a final hearing. However, the party failing to appear can challenge the proceeding under Rule 1.540(b). “This case, however, was not decided upon a default but upon a full hearing with witnesses and substantial evidence. The mother simply failed to show up at the hearing. She did not move to vacate the proceedings pursuant to Florida Rule of Civil Procedure 1.540(b) and has offered no reason, either in the trial court or in this court, as to why she absented herself from the hearing after receiving notice… This would be contrary to the best interest of the child. A parent should have the right to move to vacate a final custody judgment on the grounds allowed by Rule 1.540(b). At the hearing on the Rule 1.540(b) motion, the court may consider the absent party’ s grounds for failing to appear and hear any evidence that the party may have that would involve the party’s “meritorious defense” to the proceedings. See Webber v. Novelli, 756 So. 2d 164,165-66 (Fla. 4th DCA 2000) (noting that the trial court held an evidentiary hearing on the mother’s failure to attend). See also Elliott v. Aurora Loan Servs.,LLC,3l So. 3d 304,307 (Fla. 4thDCA 2010) (stating that to set aside judgment, the trial court must find that the movant has demonstrated excusable neglect, a meritorious defense, and due diligence in seeking relief).” Denker v. Denker