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(i) In a modification of child support case, the fact that the former wife’s bills are being paid by her new husband may be considered as part of her gross income in calculating child support. In a recent case captioned Thompson v. Malicki the Florida Court of Appeals had before it a case where the former wife sought to relocate the parties’ children, modify the parties’ custody and visitation schedule with the children, and modify child support. The Former Wife wanted to move the parties’ children from Charlotte County to Palm Beach County, Florida so that she and they could live with her new husband. The lower court denied the relocation but permitted a modification of child support.

The lower court imputed income to the former wife. The Court of Appeal stated that income can be imputed to an unemployed parent when that parent is not physically or mentally incapacitated. When income is imputed, the court is to consider the parents employment potential and the parent’s most probable earning level based on the parent’s recent work history, qualifications, and earnings level in the current job market in the community in which the parent lives. A court may not rely solely on past earnings in making a determination as to the appropriate amount of income to impute.

Additionally, the Court of Appeal also held that in a modification of child support case, where a former spouse’s expenses are being paid by a new spouse, such payments may be considered to be gross income to the recipient spouse. These payments are considered to be income to the extent that they reduce the recipient’s living expenses.

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In a modification of alimony case, a parties’ retirement does not mandate the termination of alimony payments. Retirement just provides an opportunity to revisit alimony recipient’s needs and alimony payor’s ability to pay. In a case captioned Purin v. Purin the Florida Court of Appeal had a case before it involving a thirty-year marriage. A thirty-year marriage is considered to be a long term marriage. The trial court awarded durational alimony instead of permanent alimony. The Court of appeal reversed this award. The trial court refused the wife’s request for permanent alimony and awarded her durational alimony based on the fact that the husband was going to retire at age sixty-five. The Court of Appeal stated that the starting point in every alimony determination is need and ability to pay. In this case the wife demonstrated her need and the husband’s ability to pay. However the trial court refused to award permanent periodic alimony based upon the fact that the husband was going to retire in ten years. The Court of Appeal said that the trial court should not have speculated as to what the parties’ needs and ability to pay were going to be in ten years. The Court stated that trial courts are not permitted to consider future events in setting current alimony due to the uncertainty surrounding the future. The appellate court pointed out that a payor’s retirement does not require the termination of an award of alimony. A parties’ retirement just allows a trial court to look at the parties’ then current ability to pay and their needs.

The Court of Appeal also pointed out that in a modification of alimony case, durational alimony may be extended in exceptional circumstances where there is a need for continued alimony. The Court of Appeal reversed the lower courts finding that the wife could not obtain an extension of her durational alimony award.

If you have questions to ask a divorce attorney in Wellington, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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The parties married in 1970 and were divorced in 2004. When the divorce was granted the husband had a good job in Louisiana. The court awarded alimony payments which were approximately thirty-five percent of this gross income. When he was over sixty years of age, the husband became unemployed. He looked for a job without success until January 2012. The husband accepted a job in Naples, Florida, where the compensation was commission based. He experienced a reduction in his income which was more than fifty percent of what he earned at the time of his divorce. At the time of the modification hearing, the payments for alimony and life insurance exceeded seventy percent of the husband’s monthly income. The Court of Appeal stated that the party requesting a modification must present evidence necessary for the lower court to make the determinations that are essential for relief.

The trial court needs to make factual determinations about the nature and extent of the change in financial circumstances. It needs to make a factual decision about whether the change was anticipated at the time of the final judgment. Finally the court needs to decide whether the change is substantial and whether the change was sufficient, material, permanent, and involuntary. A severe reduction in income for nearly a year, with no end in sight is considered to be permanent for purposes of granting a modification.

If you have questions about modification of alimony in Jupiter, Florida, contact at Matthew Lane & Associates, P.A. at (561) 363-3400.

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In a modification of child custody and visitation case, where the parties were originally awarded shared parental responsibility, the parties must attempt to confer and agree before major decisions are made. In Dickson v. Dickson, the Florida Court of Appeal recently stated that if the parties are unable to agree on a significant issue affecting their children’s health, safety, welfare or schooling, the parties must obtain a determination of the court before they take unilateral action. In Dickson v. Dickson the final judgment of dissolution gave the parties shared parental responsibility on major decisions, including educational matters. Under the concept of shared parental responsibility, major decisions affecting the welfare of a child are to be made after the parents confer and reach an agreement. In the event that the parents are unable to agree, the dispute should be presented to the court for resolution. The selection of a child’s school is a major decision.

Since the parties were unable to agree on the child’s school, the Court of Appeal held that the mother was required to obtain court approval before unilaterally enrolling the child in a different school. Under these circumstances, the court must resolve the impasse by determining the best interests of the child. In a modification of child custody and visitation case the trial court should take evidence and use the best interests of the child standard to determine if modification is in the child’s best. The parties’ inability to agree on which school the child should attend constitutes a substantial change in circumstances warranting modification of the parenting plan.

To speak with a Palm Beach County modification of child custody and visitation attorney, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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In Florida, child relocation is defined as a change in the location of the principal residence of a parent from his or her principal place of residence at the time of filing the pending action to establish or modify time-sharing or at the time of the last order establishing or modifying time-sharing. The change of location must be at least 50 miles from that residence. In Dickson v. Dickson, the Court of Appeal recently decided a case where the parties were married in 2003. At the time of their divorce, they had one minor child. The final judgment in 2011 provided that the child would primarily live with the mother in Lake County, but would stay with the father Wednesday nights and alternating weekends. The judgment did not prohibit relocation, however, it gave the parties shared parental responsibility. In 2014, the mother decided to move from Lake County.

The father objected to the child relocation. The trial court determined that the mother violated the final judgment by relocating. The Court of Appeal held that the mother’s move did not violate the final judgment or the relocation statute. The final judgment did not expressly prohibit the move.

Further, section 61.13001(e) defines relocation of a child as a change in the location of the principal residence of a parent from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence.

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In a recent paternity case captioned Perez v. Fay, the Florida Court of Appeal stated that a parent has a constitutionally protected right to a meaningful relationship with his child. Time-sharing privileges should not be denied to either parent as long as the parent conducts himself, while in the presence of the child, in a manner which will not adversely affect the child. Because of the constitutional right to a meaningful parent-child relationship, there must be substantial evidence in the record that demonstrates that any restrictions on time-sharing are in the best interests of the child before those restrictions will be upheld. In Perez v. Fay, there was no evidence that the parent had conducted themselves during their supervised time-sharing in any manner that would adversely affect the parties’ child. However, the trial court reduced the parent’s time-sharing with the child from two to three hours per week to only four hours per month. This drastic reduction in the parent’s time-sharing was reversed by the Court of Appeal.

Additionally, in Perez v. Fay, the Court of Appeal stated that the trial court made a mistake when it delegated to a time-sharing supervisor the authority to schedule the parent’s time-sharing at the time-sharing supervisor’s sole discretion. The Court found that it is the trial court’s duty to ensure that an appropriate relationship is maintained between a parent and his child, and that responsibility cannot be abdicated to an expert. The trial court cannot delegate its authority to another person to rule on the visitation details. The trial court must make sure that an appropriate relationship is maintained between a parent and a child and it cannot delegate its responsibility to the person supervising time-sharing. Finally, in  paternity case, the Court found that the expense of a time-sharing coordinator must be allocated in the same manner as child support obligations are allocated.

To speak with a father’s rights attorney in Palm Beach Gardens, contact Matthew Jay Lane & Associates, P.A. at (561) 363-3400.

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In a paternity action, a father cannot require tnity-test.jpghe child to take a paternity test unless the father contests the fact that he is the father in his pleadings or in his testimony. In D.O.R. ex rel Corbitt v. Alletag, the father signed an affidavit of paternity. When the Department of Revenue filed an action for child support, the father filed an answer in which he disagreed with the allegations in the Department of Revenue’s petition and requested that a paternity test be held to determine whether he was in fact the father. The matter was heard by a Child Support Hearing Officer. At the hearing the father admitted that he signed the birth certificate, but asserted that he did so because he was the only male present at the hospital when the child was born. The father requested that a DNA test be performed. The trial court affirmed the Child Support Hearing Officer’s recommendation that a DNA test be performed. The Florida Court of Appeal overruled the trial court and held that merely alleging that the father is unsure that he is the father is insufficient.

The court stated that the question of paternity is not placed in controversy by a father unless he asserts in his answer or in his testimony that he is not the child’s biological father. This is especially true when the father admits at the hearing that he signed the child’s birth certificate as the child’s father. Paternity is placed in controversy if the alleged father files papers alleging that he is not the father or asserts that he has not acknowledged his fatherhood in an affidavit. The Court of Appeal stated that the ground asserted by the father in support of his request for paternity testing-to be 100% sure that he is the child’s biological father-was insufficient as a matter of law to put paternity in controversy. A father’s wish for a DNA test to be sure that he is the father does not place paternity in controversy.

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

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In a modification of child custody and visitation proceeding, must the parties file Financial Affidavits.  In a modification of child custody and visitation proceeding that involves a modification of child support, it is mandatory to file financial affidavits. In Gilroy v. Gilroy, the Former Husband, sought review of the supplemental final judgment of dissolution of marriage that modified timesharing and child support based primarily on his relocation to Arizona. The Court of Appeal reversed the child support award based on the erroneous denial of the Former Husband’s request for a continuance at the final hearing. The remainder of the supplemental final judgment was affirmed. The parties divorced in 2007. At that time, they entered into a mediation agreement that awarded the Wife primary residential responsibility over the parties’ minor children with the Former Husband having significant timesharing. The agreement required the Former Husband to pay monthly child support. The Former Husband filed a supplemental petition for modification of child support. In 2012, the parties entered into another agreement in which child support was modified so that the Former Husband paid nothing.

In Gilroy v. Gilroy the Court of Appeal stated that the filing of a financial affidavit is both mandatory and non-waivable by the parties. Additionally, the Court stated that the parties must provide financial affidavits 72 hours prior to child support modification hearing. Section 61.30(14) of the Florida Statutes requires a respondent in child support modification proceedings to include his or her financial affidavit with the answer to the petition or as soon thereafter as is practicable, but in any case at least 72 hours prior to any hearing on the finances of either party. In Gilroy v. Gilroy the Former Wife did not dispute that she failed to comply with rule 12.285 and section 61.30(14) by providing her financial affidavit the day before the final hearing. [R]ule 12.285(e)(1) expressly provides that the requirement to provide a financial affidavit in supplemental proceedings “cannot be waived by the parties.” Additionally, the Court of Appeal stated in Gilroy v. Gilroy that children’s private school tuition can be added as a component on the child support guidelines worksheets. Section 61.30(1) provides that the court can make any other adjustments that are needed to achieve an equitable result which may include, but not be limited to, a reasonable modification of child custody & visitation and necessary existing expense or debt. Courts have long held that private school tuition may be awarded as part of child support if private schooling is part of the family’s customary standard of living.

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

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In a child relocation case, the parent with substantial time-sharing and the parent who does not have substantial time-sharing are both required to seek court permission before relocating. In Brooks v. Brooks the trial court ordered the Father to file a petition to relocate pursuant to section 61.13001 when he moved from Sarasota to Hallandale Beach. The Florida Court of Appeal affirmed this decision. The Florida Court of Appeal reasoned that when Chapter 61 was rewritten in 2008, the legislature moved away from terms such as “primary residential parent” and “nonresidential parent.” Instead, the legislature adopted terminology such as “time-sharing”. Section 61.13001(3) requires a parent seeking relocation to file a petition to relocate. Relocation is defined by section 61.13001(1)(e) as ‘a change in the location of the principal residence of a parent…from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing.” Since this definition excludes any reference to the relocating parent being the primary residential parent, the lower court ordered the Father to file a relocation petition before moving.

The Florida Court of Appeal reasoned that even though the title of the child relocation statute, section 61.13001 should be considered along with the statutory text, that title, “Parental relocation with a child” must be read in conjunction with and does not override the text of the statute. And the text in multiple places indicates that even a noncustodial parent with visitation rights would have to file a petition to relocate. Therefore, the Second District Court of Appeal in Brooks v. Brooks disagreed with the First District Court of Appeal in Raulerson v. Wright, 60 So. 3d 487,489 (Fla. 1st DCA 2011) and held that the Father, even as a noncustodial parent, was required to seek court permission before changing his residence, and it was not an abuse of discretion to compel him to do so after the fact.

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

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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.