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In a child custody and visitation proceeding, to demonstrate a wrongful removal or retention of a child under the Hague Convention, a petitioner must establish: (i) the child is retained in a country outside the country of the child’s habitual residence, (ii) the removal must be a violation of the parents right of custody, and in particular the right to determine the child’s place of residence, and (iii) the right of custody was being exercised or would have been exercised absent the removal.

In Sanchez v. Suasti the Florida Court of Appeal recently stated: “To demonstrate a wrongful removal or retention of a child under the Hague Convention, a petitioner must establish three elements. Larbie v. Larbie, 690 F.3d 295, 307 (5th Or. 2012). First, the petitioner must show the child has been retained in a country outside the child’s country of habitual residence. Id. Second, the wrongful removal must be a violation of the petitioner’s ‘rights of custody,’ which ‘include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.’ Abbott, 560 U.S. 1, 9 (quoting Hague Convention, art. 5(a)) (emphasis added). These rights arise ‘by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.’ Hague Convention, art. 3. Finally, the petitioner must demonstrate the rights of custody ‘were actually being exercised or would have been exercised but for the removal.’ Wigley v. Hares, 82 So. 3d 932, 936 (Fla. 4th DCA 2011) (citing Hague Convention, art. 3).”

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

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The correct standard for temporary alimony balances needs, as fixed by the parties’ standard of living and the ability to pay on the other. In Hoffman v. Hoffman, the Florida Court of Appeal recently stated: “Although the order under review is a temporary support order in which the circuit court has broad discretion, we conclude that the circuit court abused its discretion in requiring the Husband to virtually exhaust his monthly income to make the ordered payments, leaving him with insufficient funds to support himself.

The order’s requirement that the Husband spend in excess of 80% of his income in monthly support and temporary attorney’s fee payments reflects an abuse of discretion on its face…'[t]he correct standard by which temporary support and alimony are to be assessed balances needs, as fixed by the parties’ standard of living on the one hand, and ability to pay, on the other.’ Fonderson v. Lairap, 98 So. 3d 715, 717 (Fla. 2d DCA 2012)…The Husband argues that the circuit court abused its discretion in ordering him to make support and attorney fee payments which consume more than 80% of his net monthly income and in requiring him to pay all of the Wife’s temporary attorney’s fees. We agree and reverse the order in part and remand for further proceedings…Finally, as argued by the Husband, it appears that the circuit court may not have considered the effect of the court-ordered spousal support on the Wife’s ability to pay her temporary attorney’s fees, particularly in light of the retroactive support award totaling $22,730. See Crick, 78 So. 3d at 699 (‘A trial court must consider all assets and sources of income in an award for attorney’s fees.’). Accordingly, on remand the circuit court shall reconsider the Wife’s entitlement to temporary attorney’s fees.”

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

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In a child custody and visitation proceeding, the constitutional guarantee of due process dictates a full and fair opportunity to be heard in judicial proceedings. The failure to give a party the chance to present witnesses or testify violates this fundamental right. In Cole v. Cole, the Florida Court of Appeal recently stated: “…We conclude that in ruling, without giving the Father an opportunity to present evidence, the trial court abused its discretion and violated the Father’s right to procedural due process. The constitutional guarantee of due process dictates a full and fair opportunity to be heard in judicial proceedings. The failure to give a party the chance to present witnesses or testify violates this fundamental right. Henderson v. Lyons, 93 So. 3d 399 (Fla. 2d DCA 2012); see also Douglas v. Johnson, 65 So. 3d 605 (Fla. 2d DCA 2011); Smith v. Smith, 964 So. 2d 217 (Fla. 2d DCA 2007); Baron v. Baron, 941 So. 2d 1233 (Fla. 2d DCA 2006); Pettry v. Pettry, 706 So. 2d 107 (Fla. 5th DCA 1998).

‘[T]he right to be heard at an evidentiary hearing includes more than simply being allowed to be present and to speak. Instead, the right to be heard includes the right to ‘introduce evidence at a meaningful time and in a meaningful manner.’ Baron, 941 So. 3d at 1236 (quoting Brinkley v. County of Flagler, 769 So. 2d 468, 472 (Fla. 5th DCA 2000)). As Judge Orfinger stated in Pettry, 706 So. 2d at 108, ‘[p]erhaps the additional witnesses would not have impressed the court, but the husband had the right to present them and to argue his case at the conclusion of all the testimony.’ Accordingly, we reverse the judgment entered below and remand this cause for further proceedings. Upon remand, the trial court may, with the stipulation of the parties, re-open and conclude the prior evidentiary hearing, or, in the absence of such stipulation, must hold a new evidentiary hearing on the parties’ custody motions. See Alvord v. Alvord, 572 So. 2d 925, 926 (Fla. 3d DCA 1990) (stating a successor judge, who does not hear evidence heard by his predecessor, may only enter judgment upon a retrial or if the parties stipulate to a ruling based on the record of the prior proceedings). Reverse and remanded for further proceedings consistent with this opinion.”

To speak with a Singer Island, Florida, child custody and visitation attorney, contact Matthew Lane & Associates, P.A. at (561) 651-7273.

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In a divorce proceeding, if a trial court bifurcates the proceeding to dissolve the marriage but retains jurisdiction to determine property issues, the subsequent death of a party does not deprive the trial court of jurisdiction to determine the issues reserved. In Passamondi v. Passamondi, the Florida Court of Appeal recently stated: “Claudia Passamondi (the Former Wife) challenges the trial court’s order dismissing her claims for the determination of property issues in a bifurcated dissolution of marriage proceeding.

The dismissal followed the death of Anthony Passamondi (the Former Husband). Because the trial court erred in determining that it lacked jurisdiction because of the death of the Former Husband, we reverse and remand for further proceedings…The Former Husband and the Former Wife were married in 1988. In January 2006, the Former Husband filed a petition seeking the dissolution of the parties’ marriage. The Former Wife answered the petition and counter-petitioned for dissolution of the marriage and for other relief. When the Former Husband filed his petition, he was suffering from a terminal illness. For this reason, he filed a motion requesting a bifurcation of the proceedings. The trial court granted the motion. On May 24, 2006, the trial court entered a final judgment dissolving the parties’ marriage. In the final judgment, the trial court specifically “reserve[d] jurisdiction over this cause and each of the parties to enter such further Orders, Judgments, and Decrees as may be necessary at any time in the future to resolve all equitable distribution issues and any other issues which have been pled.” The Former Husband died on July 26, 2006…In a written order, the trial court memorialized its ruling, in pertinent part, as follows: H. That by virtue of the death of the Former Husband and the opening of a Probate Estate for him, the Probate Court was vested with exclusive control over the Former Husband’s assets and the Probate Court had exclusive jurisdiction to determine the proper manner of distribution of the Former Husband’s assets after payment of all creditors of the Estate of which the Former Wife was one…If a trial court bifurcates a proceeding for dissolution of marriage by entering a judgment dissolving the marriage but retaining jurisdiction to determine property issues, the subsequent death of a party does not deprive the trial court of jurisdiction to determine the issues reserved. See Fernandez v. Fernandez, 648 So. 2d 712, 714 (Fla. 1995). In this case, the trial court had entered a final judgment dissolving the parties’ marriage and retaining jurisdiction to determine all other issues before the death of the Former Husband. Therefore, the trial court incorrectly concluded that it did not have jurisdiction to hear and to determine the Former Wife’s claims.”

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

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In a paternity proceeding, a child born during an intact marriage is presumed to be the child of the man to whom the biological mother was married. In CG v. J.R. & J.R., the Florida Court of Appeal recently stated: “… [T]his is…a case wherein the biological mother- while married to her husband-became pregnant by another man and wherein both fathers claim parental rights to the child. The fact that C.G.’s DNA test results established that he was H.G.-R.’s biological father is “legally insignificant” for purposes of establishing parental rights. See Slowinski v. Sweeney, 117 So.3d 73, 78 (Fla. 1st DCA 2013). 

“The Florida Supreme Court has defined the ‘legal father’ as the man to whom the mother was married when the child was born and whose name appears on the birth certificate ” Id. (citing Dep’t of Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305; 307 (Fla. 1993))…In G.F. C., the court was tasked with deciding whether a trial court properly dismissed a biological father’s petition to establish paternity where the child was born during the biological mother’s intact marriage to a man who was not the biological father. The court noted that at common law, a child born during an intact marriage was presumed to be the child of the man to whom the biological mother was married and that the common law presumption of legitimacy remained. 686 So. 2d at 1384 (citing Privette,617 So. 2d at 307)…This is not a case where either the biological father or the legal father has abandoned the child. Nor is this a case where either father failed to demonstrate a strong desire to be a part of the child’s life or even the ability to care for the child. Rather, this is one of those cases presenting the unfortunate circumstance of a child who was born into a legally intact marriage but who was conceived as the result of an extramarital affair. The consequence of that circumstance is that the third party, here C.G., has an interest in that child which is adverse to the legal father, here J.R. We are cognizant of the gravity of our decision and the legal ramification that it has on C.G.’s and H.G.-R.’s relationship. However, under the facts of this case, there is simply no support in Florida law for the proposition that H.G.-R. is entitled to have two legally recognized fathers.

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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Contested paternity proceedings may not be heard by hearing officers because they have no constitutional or statutory authorization to make recommendations regarding custody and visitation. In Department of Revenue o/b/o Moore v. Williams, the Florida Court of Appeal recently stated: “The Department of Revenue appeals a Final Judgment of Support which deviated from the child support guidelines by more than five percent based on the findings and recommendations of a hearing officer…On behalf of the Mother, the Department filed a petition for support and other relief against the Father…

The matter went before a support enforcement hearing officer, who considered the visitation agreement in calculating the child support obligation…Over the Department’s objection, the hearing officer recommended deviating from the child support guidelines by more than five percent based on the agreement, referring to it as a “parenting plan.” The trial court adopted the hearing officer’s findings and recommendations in the final judgment of support without indicating whether it had approved the visitation agreement. After its motion to vacate was denied, the Department timely appealed…The hearing officer was not authorized to approve the visitation agreement because her authority does not extend to issues of visitation. See Fla. Fam. L. R. P. 12.491 (delineating the powers and duties of support enforcement hearing officers without including any authority relating to visitation issues); see also Amendments to the Florida Family Law Rules of Procedure, 723 So. 2d208, 212 (Fla. 1998) (concluding that hearing officers are not authorized to hear contested paternity proceedings because they “have no constitutional or statutory authorization to make recommendations regarding custody and visitation”). And, unfortunately, the trial court simply approved the findings and recommendations of the hearing officer without conducting an independent review of the visitation agreement. Nothing in the record indicates that the trial court ever specifically approved the agreement, either before the hearing or in the final judgment.”

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 relocation proceeding, when a parent violates a pretrial order addressing the removal of the child from the jurisdiction of the court, it is well within the discretion of the trial court to award sole responsibility to the parent who is properly before the court and compliant with the orders of that court. “Claudia Herrera-Frias appeals the judgment of dissolution of her marriage to Jesus Frias…She also challenges the trial court’s decision to award her husband sole parental responsibility for the three children of the marriage while giving her limited contact with the children…

The record in this case does not contain a transcript of the final hearing. As a result, we do not know what evidence the trial court considered when making its decision. We gave Ms. Herrera-Frias an opportunity to provide this court with a transcript, but she has failed to provide a transcript. It appears likely that neither party arranged for that hearing to be recorded. The record reflects that Ms. Herrera-Frias has not complied with the judgment on appeal. Prior to the entry of the final judgment, she willfully disobeyed a court order, fleeing to Mexico with her three children. She has not returned the children to the United States, despite the fact that at least one of the children is a United States citizen. This court presumably had the authority to dismiss this appeal because of her noncompliance. See Gazil v. Gazil, 343 So. 2d 595 (Fla. 1977). We have not dismissed the appeal because we are aware that proceedings are pending in Mexico seeking the return of these children to the United States and we want that court to have confidence that this court has accorded a full measure of due process to Ms. Herrera-Frias…Concerning child custody and child support, again our review is hampered by Ms. Herrera-Frias’s failure to take the steps necessary to provide a record to this court.’ Under Florida law, it was her responsibility to take those steps if she wished to challenge a decision by the trial court that was dependent upon the evidence and arguments before that court. See Fla. R. App. P. 9.200(e); Carney v. Carney, 861 So. 2d 1272 (Fla. 1st DCA 2003). When a parent is in willful violation of a pretrial order addressing the removal of the children from the jurisdiction of the court, it is well within the discretion of the trial court to award sole responsibility to the parent who is properly before the court and compliant with the orders of that court.”

To speak with a Florida child custody relocation attorney about child relocation, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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| Apr 11, 2014 | Alimony

In awarding alimony, income from property being distributed should be used in determining need and ability to pay. In Hodge v. Hodge, the Florida Court of Appeal recently stated: “The Amended Final Judgment does not indicate that the trial court’s calculation of the Appellee’s income included any investment income attributable to the assets divided in the equitable distribution scheme….

Failing to attribute the income from property being distributed to that party when determining need and ability to pay is reversible error. See Acker v. Acker, 904 So. 2d 384, 386-87 (Fla. 2005). The supreme court held that section 61.08(2), Florida Statutes, requires a trial court to consider all sources of income-including equitably-distributed assets-when determining alimony awards. Id. at 388-89 (citing Lauro v. Lauro, 757 So. 2d 523, 524-25 (Fla. 4th DCA2000)). In the present case, the trial court failed to consider how the equitable distribution scheme disposed of income-earning assets. Appellant argued below that the parties’ incomes after equitable distribution were significantly different than the estimates employed by the lower court’s award…In the Amended Final Judgment…The lower court also failed to include equitably-distributed property in its estimate of Appellee’s income. After reviewing the Amended Final Judgment, we conclude that the lower court’s conclusions are not based on competent, substantial evidence…In light of Acker, both parties’ income estimates must be revised to reflect the equitable distribution of income-earning assets. We reverse the lower court’s findings with regard to the calculation of both parties’ income and remand for a determination of an appropriate alimony award.”

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In a child relocation proceeding, when the parties’ settlement agreement expressly prohibits a move, the party who seeks to relocate must show a substantial change in circumstances to justify the relocation. In Moore v. McIntosh the Florida Court of Appeal recently stated: “The trial court erred as a matter of law by modifying the parties’ custody arrangement after finding that the parties’ relocation to different cities in Okaloosa County, which resulted in each of them living twenty miles from their child’s school in Okaloosa County, constituted a substantial change of circumstances.

Courts have repeatedly found that child relocation does not itself constitute a substantial change of circumstances warranting modification of custody. See Ragle v. Ragle, 82 So. 3d 109 (Fla. 1st DCA 2011) (moving to a new home 28 miles from the father’s previous home characterized as a “minor relocation”); Ogilvie v. Ogilvie,954 So. 2d 698 (Fla. 1st DCA 2007) (relocation from New York to Florida); Sotomayor v. Sotomayor, 891 So. 2d 559 (Fla. 2d DCA 2004) (relocation from New York to Florida, when visitation agreement contemplated that the parents would live in the same city); Zugda v. Gomez, 553 So. 2d 1295 (Fla. 3d DCA 1989) (relocation from Florida to Michigan). When the parties’ settlement or visitation agreement expressly prohibits a move, thus establishing that the parties had previously litigated the issue, the party who seeks to relocate must show a substantial change in circumstances to justify the relocation. Mize v. Mize, 621 So. 2d 417, 420 (Fla. 1993) (visitation order provided that ‘[b]oth parties are expressly forbidden to move [the child] from the State of Florida without the express permission of this Court’). In contrast, in the case at bar, the Marital Settlement Agreement incorporated into the Final Judgment of Dissolution provides: It is further anticipated that the parties shall continue to reside in close proximity to one another, i.e., in the same school district. If either party chooses to relocate outside the school district, then the relocating party shall give the other party at least ninety days written notice of same. This will allow enough time to negotiate a stipulated resolution of related issues or the time to attend mediation or obtain judicial relief. Although this expresses a hope that the parties would remain in close proximity to each other, the possibility of relocation is expressly contemplated. Moreover, both parents are still in the same Okaloosa County School District.”

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

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In making a division of property and assets in a divorce proceeding, there must be extraordinary circumstances to award an interim partial distribution. In Defanti v. Russell, the Florida Court of Appeal recently stated: “This is an appeal from the circuit court’s order granting the former wife’s amended sworn motion for summary judgment, which sought an interim partial distribution of marital assets in a dissolution of marriage case. The former husband’s estate argues that the former wife was not entitled to the interim partial distribution because she did not show the statutorily-required good cause. We agree with the estate and reverse.

The good cause requirement for an interim partial distribution arises from section 61.075(5), Florida Statutes (2012). Section 61.075(5), in pertinent part, states: If the court finds good cause that there should be an interim partial distribution during the pendency of a dissolution action, the court may enter an interim order that shall identify and value the marital and nonmarital assets and liabilities made the subject of the sworn motion, set apart those nonmarital assets and liabilities, and provide for a partial distribution of those marital assets and liabilities…..(a) Such an interim order shall be entered only upon good cause shown and upon sworn motion establishing specific factual basis for the motion. The motion may be filed by either party and shall demonstrate good cause why the matter should not be deferred until the final hearing…(d) As used in this subsection, the term “good cause” means extraordinary circumstances that require an interim partial distribution. Section 61.075(5), Fla. Stat. (2012) (emphasis added)….We conclude that the former wife did not show without genuine issue of material fact that extraordinary circumstances required an interim partial distribution of her one-half share of the liquid assets. See id. (“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.”). As the husband’s memorandum in opposition argued, the former wife’s motion offered no showing of good cause, that is, extraordinary circumstances which required the interim partial distribution. Thus, the circuit court should have denied the former wife’s motion pending trial, at which time the court could have included the former wife’s one-half share as part of its determination of whether to impose an equal or unequal distribution of the parties’ marital assets and liabilities pursuant to section 61.075(1), Florida Statutes (2012).”

To speak with a Wellington Florida divorce attorney, contact Matthew Lane and Associates, P.A. at (561) 328-1111