Skilled Family Law Counsel

Alimony – Standard of Review of Trial Court’s Rulings in Florida

Alimony – Standard of Review of Trial Court’s Rulings in Florida

Trial Court’s Decision on whether to award permanent alimony is subject to an abuse of discretion standard of review. “‘A trial court’s decision on whether to award permanent periodic alimony is subject to an abuse of discretion standard of review.’ Hornyak v. Hornyak, 48 So. 3d 858, 861 (Fla. 4th DCA 2010); see Mondello v. Torres, 47 So. 3d 389, 396 (Fla. 4th DCA 2010) (noting that “the nature and amount of an award of alimony is a matter committed to the sound discretion of the trial court” (citation, internal quotation marks, and alteration omitted)); § 61.08(2), Fla. Stat. (2009). Beasley v. Beasley

Unmarried Fathers and Unmarried Mothers and Contempt of Court in Florida

This paternity case involved an unmarried mother and an unmarried father in Hillsborough County, Florida. This litigation started when the child was 16 months old. The parties were initially able to settle matters involving their personal property. However, disputes about the child continued for many years. After an August 2008 hearing, the trial court entered a temporary order awarding majority time-sharing to the father. The remaining issues were referred to a general magistrate. The general magistrate did not conduct a hearing on these issues for two years. One of the parents objected, and the reviewing court did not issue an order for three more years. The mother objected to this ruling and the court did not rule on the mother’s objections for another two years.

The father was then found in contempt of court for violating the temporary timesharing order. In the contempt order, the father lost his majority timesharing with the child. The court granted a custody modification and awarded the mother equal timesharing. The father was also admonished not to exercise sole parental responsibility and was ordered not to engage in conduct that hindered effective co-parenting.

The Court of Appeal ruled that trial courts in Florida cannot modify custody orders as a sanction for contempt of court. Motions for contempt are filed to enforce the provisions contained in parenting plans contained in court orders. Trial courts are prohibited from modifying custody provisions as a sanction for a party’s contempt of court. The reason for this is that the penalty of changing custody does not compel compliance. Instead, it punishes the child for the parent’s misconduct. The Florida Court of Appeal ruled that the better course of action is to grant additional visitation or make-up visitation. The Court held that a trial court may not sanction a parent by reducing his or her timesharing. This sanction is not permitted as a matter of law in the State of Florida. Accordingly, the trial court’s order was reversed and the case was remanded to the trial court.

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.

Modification During Pendency of Appeal in Florida

Trial Court has jurisdiction over a petition for modification during the pendency of an appeal. “Both the Third and Fourth Districts have held that the trial court has jurisdiction over a petition for prospective downward modification of alimony and/or child support even while the appeal of an initial award of alimony and child support is pending because “‘[t]he granting of modification relief prospectively would have no effect on the order being appealed.’” Atlas v. Atlas, 708 So. 2d 296, 298 (Fla. 4th DCA 1998) (quoting Merian v. Merhige, 690 So. 2d 678, 681 (Fla. 3d DCA 1997) ) (emphasis added).” Cooper v. Cooper

Failure to Exercise Visitation in Florida

Failure to exercise time-sharing results in an adjustment of child support. “We previously held that application of section 61.30(11(b) is mandatory. Seiberlich v. Wolf, 859 So. 2d 570, 571 (Fla. 5th DCA 2003). Florida law mandates a reduction in child support whenever the non-custodial parent spends a “substantial amount of time” with the child. § 61.3O(1)(a), Fla. Stat. (2006). It seems intuitive that, conversely, the failure to spend time with a child mandates forfeiture of the right to a reduction in child support. The Legislature has specifically provided that a parent’s failure to exercise court-ordered or agreed-upon time-sharing, not caused by the other parent, resulting in the adjustment of child support “shall be deemed a substantial change of circumstances….” § 61.30(11)(c), Fla. Stat. (2001). That modification is “retroactive to the date the noncustodial parent first failed to regularly exercise court-ordered or agreed visitation. Id.” Buhler v. Buhler

Date on Which the Child Support Award Modification Takes Place in Florida

Child Support Award Modification – Date on Which the Modification Takes Place in Florida

When the court makes an allocated award for each child, the modification is retroactive to the date the child reaches majority, and pre-dates the filing of the modification petition. “Furthermore, when the issue is arrearages, the obligor is entitled to a retroactive reduction pre-dating a modification petition, consistent with the statutory child support guidelines. See, e.g., State, Dep’t of Revenue ex rel Ortega v. Ortega, 948 So. 2d 855,857 (Fla. 3d DCA 2007) (explaining that, in the McClung decision, the court was ‘careful to distinguish those authorities that refused to retroactively modify an unallocated support award from the case then before us involving what we determined to be an allocated award…’). Gilbert v. Cole.

Adultery in Alimony Cases in Florida

In making an alimony award, adultery and infidelity can only be considered by the trial judge when the adulterous conduct involves the dissipation of marital assets. In a case captioned Keyser v. Keyser, the parties were married for twenty-years. This is considered a long term marriage. When there is a long term marriage, there is an initial presumption that an award of permanent alimony is appropriate. It was also alleged in Keyser v. Keyser that one of the spouses engaged in marital infidelity.

The Florida Court of Appeal recently stated that in making an alimony award, a trial judge is permitted to consider a spouse’s infidelity. The Florida Court of Appeal pointed out that Florida Statutes Section 61.08(1), allows the trial judge to consider adultery in making an alimony award. However, the Court stated that without a showing that marital assets were used to support the allegedly adulterous behavior, infidelity is not an appropriate basis for awarding a larger share of the parties’ marital assets to the innocent spouse. The Appellate Court also stated that adultery is not a sufficient basis to deny an award of alimony to the other spouse. Finally, even if adultery does take place, the payor’s ability to pay and the payee’s need are the primary factors that the trial court should consider in making an alimony award 61.08. In making an alimony award the trial court must first determine whether the payor has the ability to pay alimony and whether the recipient has an actual need for alimony before it considers the other statutory factors set out in Florida Statutes Section 61.08.

To speak with an alimony attorney in Palm Beach County, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

Alimony in Wellington and Palm Beach Gardens, Florida

In a recently decided alimony case captioned Jimenez v. Jimenez, the Florida Court of Appeal stated that in reaching a decision concerning alimony, a trial court is required to consider every one of the factors set forth in the Florida Statutes. In deciding whether or not to award alimony, a trial court is required to decide whether one of the parties has the ability to pay alimony and whether the other party has the need for alimony. If a court determines that one party has the ability to pay alimony and that the other party has the need for alimony, the court is required to consider all of the following ten factors. First, the standard of living established by the parties during the marriage. Second, the length of the marriage. Third, the physical and emotional condition of each of the parties and the age of the parties. Fourth, each parties assets and liabilities. Fifth, the parties’ earning capacities and the need for additional training and education. Sixth, each of the parties’ contribution to the marriage. Seventh, the need to stay home with any minor children. Eighth, the tax consequences of an award of alimony. Ninth, each parties’ sources of income from employment or investments. Tenth, any other factor that the court considers is necessary to reach a fair and just resolution of the matter.

In the event that the trial court fails to consider all of the alimony factors, the case will be reversed on appeal. At that point the case will be remanded to the trial court to retry the case.

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

Modification of Alimony in Palm Beach Gardens

In a modification of alimony case, a payor’s alimony obligation can be reduced when the recipient voluntarily reduces their needs. In a recently decided case captioned Regan v. Regan, the trial court granted the Husband’s petition for modification.  The trial court permitted a reduction of the Husband’s alimony obligation from $9,000 per month to $7,800 a month. When the parties were divorced, they agreed that the Husband would pay $9,000 per month. The wife also received retirement accounts and investment accounts as part of the settlement. After the divorce, the wife significantly reduced her expenses by moving to another state, selling the marital house, and purchasing a smaller home. The trial court found that these reductions constituted a substantial change of circumstances and warranted a modification of alimony.

The Florida Court of Appeal held that where a party is required by the court to make alimony payments and the financial ability of either of the parties changes, either party is entitled to apply to the court for a modification of alimony. The trial court has the authority to make changes that equity requires, taking into account the parties’ changed financial ability or the circumstances of the parties. The trial court has the authority to increase or decrease alimony. In order for a modification to be granted there must be a substantial change in circumstances that was not contemplated at the time of the divorce which is material, sufficient, involuntary and permanent. The involuntary aspect has been applied where a party’s ability to pay is reduced. Where a recipient voluntarily reduces his or her living expenses, a reduction in alimony may also be granted. Where, as here, the recipient spouse’s expenses are reduced by more than one half as a result of her reducing the size of her home and moving out-of-state, the Husband’s alimony obligation may be reduced.

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

Alimony Attorney in Wellington, Florida

In a recently decided alimony case captioned Barlow v. Barlow, the Florida Court of Appeal ruled that a trial court should utilize the most recent income figures available in calculating alimony and child support and not rely on past earnings. In this case the Husband appealed the trial court’s ruling concerning the calculation of alimony and child support and the division of marital assets. The Court of Appeal ruled that the lower court made a mistake in calculating the Husband’s bonus income. The Court reversed the lower court’s ruling and required the trial court to retry the case.

The Husband and Wife agreed on the amount of the Husband’s base salary at the time of the divorce in 2015. In calculating the Husband’s income, the trial court utilized the Husband’s bonus in 2013, rather than utilizing the Husband’s bonus in 2014. The Florida alimony statute requires courts to take into consideration all sources of income available to both parties in awarding alimony. The Florida child support statute requires courts to include bonus income in calculating child support.

Income from bonuses should be utilized in calculating alimony and child support when the bonuses are continuous and regular. Here the trial court used the Husband’s 2013 bonus in calculating support payments. The trial court utilized this amount because it was the last bonus that the Husband received prior to the date of the filing of the divorce. The Court of Appeal held that the lower court should have utilized Husband’s 2014 bonus, which was the most recent bonus that the Husband earned prior to the date of the trial. A party’s most current income, or income that is expected to be earned in the near future, should be used in calculating alimony and child support awards. Past income figures should not be utilized when the Court has access to current figures. In the case at bar, the Court incorrectly utilized bonus income figures from 2013, instead of using current income figures from 2014. The husband’s bonus in 2014 was significantly lower than in 2013. The Court held that the final judgment should reflect the fact that the husband’s income was reduced. The Court of Appeal reversed the lower court and instructed the trial court to recalculate alimony and child support.