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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.

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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.

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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.

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In cases involving the division of property and assets, the Court will identify and value all marital assets. Debts to cover nonmarital expenses should not be classified and allocated as marital debts. “Section 61.075(3), Florida Statutes (2012), requires the trial court to identify and value all marital assets and liabilities. Distribution of the marital assets and liabilities must be supported by factual findings in the judgment or order based on competent, substantial evidence. Kovalchick v. Kovalchick, 841 So. 2d 669, 679 (Fla. 4th DCA 2003). We review such findings for an abuse of discretion. See Steele v. Steele, 945 So. 2d 601, 602 (Fla. 4th DCA 2006). However, we review de novo the trial court’s legal conclusion that an asset or liability is “marital” or “nonmarital,” as defined in the statute. Mondello v. Torres, 47 So. 3d 389, 392 (Fla. 4th DCA 2010)

However, to the extent that a party incurred debts to cover nonmarital expenses, the debt should not be classified as marital debt for the purpose of equitable distribution. Fortune v. Fortune, 61 So. 3d 441,445 (Fla. 2d DCA 2011) (reversing because the trial court classified the entire amount of a loan as a martial debt without making a finding as to when the debt was incurred or what the debt was used to pay); Walker v. Walker,827 So. 2d 363, 364-65 (Fla. 2d DCA 2002) (reversing because the trial court classified the entire amount of a debt as a marital debt without determining which portion of the debt was used to pay the husband’s litigation and living expenses versus paying his personal income tax and property taxes). Here, based on the former husband’s own testimony, the trial court determined that the credit card debt in the former husband’s name was nonmarital. His testimony concerning the nature and purpose of his credit card expenses sufficiently overcame the presumption that the liability was marital. Because we find no error in the trial court’s classification of the former husband’s credit card debt as nonmarital, we affirm.

To speak with a divorce attorney in Jupiter, Florida, contact Matthew Lane & Associates, P.A. at (561) 651-7273.

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The child relocation statute does not apply when the parent has relocated prior to the date of the filing of the dissolution petition. In Rolison v. Rolison the Florida Court of Appeal recently stated: “Appellant (the Father) appeals a non-final order denying his emergency verified motion to compel Appellee (the Mother) to return the parties’ minor children to Florida. We affirm the trial court’s order, which correctly found that section 61.13001, Florida Statutes (2013), Florida’s relocation statute, did not apply, as the Mother moved to Georgia before the Father filed for dissolution. The Father filed a petition for dissolution of marriage and other relief on February 21, 2014. The trial court denied the Father’s emergency motion, finding that section 61.13001 was inapplicable, because it only applied to a child’s relocation or proposed relocation during a pending proceeding.

Although the result here may be troubling, the plain language of the relocation statute applies only where a parent’s principal place of residence changes “at the time of the last order establishing or modifying time-sharing” (which is not applicable here), or “at the time of filing the pending action.” § 61.13001(l)(e), Fla. Stat. The Mother’s location was already in Georgia when the Father filed the pending action; as such, in accordance with section 61.13001, she did not have to seek permission from the Father or the court to move there…Based upon the definition of relocation under section 61.1300l(l)(e), and citing the Second District’s opinion in A.F. for support, the Fourth District, in dicta, stated that “the mother is correct in arguing that (she had already moved to Louisiana prior to the father’s filing of the petition to determine paternity or any order establishing or modifying time-sharing, then she is not subject to the relocation statute.”

To speak to a relocation attorney in Jupiter, Florida, call Matthew Jay Lane & Associates, P.A. at (561) 363-3400.

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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.”

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In a child custody and visitation proceeding, where time-sharing is ordered, the non-custodial parent’s right to the child on rotating holidays has become so routine and necessary that to deny it requires factual findings justifying that decision. In Mills v. Johnson, the Florida Court of Appeal stated: “Furthermore, the trial court erred in accepting and adopting a time ­sharing schedule that did not address holiday time-sharing. It is undisputed that the Former Husband failed to raise this issue in his exceptions to the magistrate’s report. Nonetheless, if the errors in the magistrate’s report are clear on its face, the trial court errs in adopting the report. See Torres v. Torres, 98 So. 3d 1171, 1171-72 (Fla. 2d DCA 2011).

Such is the case here. Cf. Crittenden v. Davis, 89 So. 3d 1098,1101 (Fla. 4thDCA 2012) (” ‘[W]here visitation is ordered, the non-custodial parent’s right to the child on rotating holidays has become so routine and necessary that to deny it requires factual findings justifying that decision.’” (quoting Todd v. Guillaume-Todd, 1 972 So. 2d 1003, 1006 (Fla. 4th DCA 2008))); Schumaker v. Schumaker, 931 So. 2d 271,274 (Fla. 5th DCA 2006) (holding that the trial court erred in failing to address holiday visitation). In light of I the fact that the magistrate determined that the parties have a “contentious parenting relationship,” it seems particularly imperative for the magistrate to recommend a holiday time-sharing schedule. See Blackburn v. Blackburn, 103 So. 3d 941, 942 (Fla. 2d DCA 2012) (“[T]he magistrate erroneously declined to set a holiday time-sharing schedule as requested. As a result, the parties who already have exhibited animosity toward one another are left with the responsibility of setting a schedule by which they can share time with the children on / major holidays.”).

Therefore, we reverse the trial court’s award of alimony and direct the trial court to revisit the issue on remand. We also reverse the time ­sharing schedule to the extent that it does not address holiday time ­sharing and remand for the trial court to set a holiday time-sharing schedule. Affirmed in part; reversed and remanded in part.”

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In a paternity case and in a marital case, a temporary domestic violence injunction may be extended during a continuance of a hearing, however, the statute does not provide for the issuance of a series of temporary injunctions. In Prior v. Prior, the Florida Court of Appeal recently stated:

“Amanda Pryor appeals an order extending a temporary injunction for protection against domestic violence which, even as extended, has now expired. We vacate the November 14, 2013 order under review, which extended the temporary injunction, as well as the temporary injunction itself, and dismiss the appeal. Section 741.30, Florida Statutes (2013), “authorizes extending a temporary injunction during a continuance of the evidentiary hearing, but authorizes a continuance only for good cause: ‘The court may grant a continuance of the hearing before or during a hearing for good cause shown by any party, which shall include a continuance to obtain service of process. Any injunction shall be extended if necessary to remain in full force and effect during any period of continuance.’ § 741.30(5)(c), Fla. Stat. (201[3]).” Dietz v. Dietz, 127 So. 3d 1279, 1280 (Fla. 1st DCA 2013) (“Section 741.30 does not provide for the issuance of a series of temporary injunctions in lieu of a permanent injunction.’” (citation omitted)). While “injunctions for protection against domestic violence are an exception to the usual rules of mootness because of the collateral legal consequences that flow from such an injunction,” Rodman v. Rodman, 48 So.3d 1022, 1022 (Fla. 1st DCA 2010), we have vacated both the order under review in the present case and the temporary injunction it purported to extend.”

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

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In a paternity case and in a child support matter, a contempt of court order must contain findings that: (i) a prior order was entered, (ii) the payor failed to pay part or all of the support ordered, (iii) the contemnor had the present ability to pay support, and (iv) that the alleged contemnor willfully failed to comply with the prior court order. In Napoli v. Napoli, the Florida Court of Appeal recently stated:

“We reverse and remand for further proceedings because the trial court’s contempt order does not contain the written findings required by rule 12.615 of |the Florida Family Law Rules of Procedure… When a trial court finds that a civil contempt has occurred, it must enter a written order containing: a finding that a prior order of support was entered, that the alleged contemnor has failed to pay part or all of the support ordered, that the alleged contemnor had the present ability to pay support, and that the alleged contemnor willfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based… We hold that the written contempt order in this case does not comport with these requirements. First, the contempt order does not contain an express finding that the Husband willfully failed to comply with the court’s temporary relief order. Second, the contempt order does not articulate the facts supporting the court’s conclusion that the Husband had the ability to comply with the court’s prior order. Finally, the contempt order sanctions the Husband with incarceration but does not contain a separate, affirmative finding that he had the present ability to comply with the purge.”

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

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In a child custody and visitation proceeding under the Hague Convention, the right of access is the right to spend time-sharing with the child for a limited period of time in a place other than a child’s usual residence. The remedy for a violation of this right is not to force the return of the child. A parent’s right to withhold consent to take a child out of the country is a right of custody.

In Sanchez v. Suasti the Florida Court of Appeal recently stated: “The only disputed issue in this regard is whether the father had “rights of custody” under the Hague Convention. The trial court concluded the father merely had “rights of access.” The Hague Convention draws a distinction between a parent’s “rights of custody” and “rights of access.” A parent’s “right of access” is defined as “the right to take a child for a limited period of time to a place other than the child’s habitual residence. “Hague Convention, art.5.The remedy for the violation of a parent’s right of access does not include the right to force the return of the child. Instead, a court may, for example, “force the custodial parent to pay the travel costs of visitation, or make other provisions for the noncustodial parent to visit his or her child.” Abbott, 560 U.S. at 13 (internal citation omitted)…In Abbot, the United States Supreme Court held a non-custodial parent’s right to consent before the custodial parent could take the child to another country constituted “rights of custody” under the Hague Convention. Id. at 10…A parent’s right to determine the country of a child’s residence is a right of custody. “In doing so, the Court held a non­custodial parent’s joint right to determine a child’s country of residence constituted “rights of custody” under the Hague Convention. “

To speak with a divorce attorney in North Palm Beach, Florida, contact Matthew Lane & Associates, P.A. at (561) 651-7273.