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In a divorce proceeding, notwithstanding the lack of reservation of jurisdiction to enforce a charging lien, the trial court retains jurisdiction to enforce a charging lien where the trial court reserves jurisdiction to award fees. In Card v. Card, 38 Fla. L. Weekly D2015, 2016 (Fla. 2d DCA September 20, 2013), the Florida Court of Appeal recently stated: “Counsel for the Former Wife also argues that the trial court erred by not reserving jurisdiction in the amended final judgment to address his timely filed charging lien.

There is no dispute that counsel filed the notice and claim of charging lien before the original final judgment was entered. Thus, counsel perfected his charging lien by providing timely notice. See Daniel Mones, P.A. v. Smith, 486 So. 2d 559,561 (Fla. 1986) (“In order to give timely notice of a charging lien an attorney should either file a notice of lien or otherwise pursue the lien in the original action.”); see also Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383, 1385 (Fla. 1983) (“[T]here are no requirements for perfecting a charging lien beyond timely notice.”); Brown v. Vt. Mut. Ins. Co, 614 So. 2d 574, 580 (Fla. 1st DCA 1993) (holding that to be “timely” the notice of a charging lien must be filed “before the lawsuit has been reduced to judgment”). Notwithstanding a lack of express reservation of jurisdiction over the charging lien, the trial court is not foreclosed from considering the charging lien in this action because the issue of attorney’s fees and costs has not been finalized and the trial court reserved jurisdiction for that purpose. See Baker & Hosteller, LLP v. Swearingen, 99S So. 2d 1158,1163 (Fla. 5th DCA 2008) (holding that the trial court had jurisdiction to consider a motion to perfect and enforce an attorney’s charging lien where the trial court reserved jurisdiction to determine entitlement and amount of attorney’s fees).”

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

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In a divorce proceeding, even if the record supports an award of attorney’s fees, the failure to include the necessary findings in the order constitutes reversible error. In Bradham v. Bradham, the Florida Court of Appeal recently stated: “Timothy Bradham, the former husband, appeals the trial court’s order modifying his alimony obligation and requiring him to pay attorney’s fees and costs of appellee, Susan E. Bradham, the former wife. We find no abuse of discretion in the modification of alimony.Galligar v. Galligar, 11 So. 3d 808, 811 (Fla. 1st DCA 2011). Because the trial court made no findings to support the fee and cost award, we reverse the order granting fees and costs and remand for further proceedings.

We apply the abuse of discretion standard to review a lower court’s award of attorney’s fees. Shelly L Hall, M.D., P.A. v. White, 97 So. 3d 907,909 (Fla. 1st DCA 2012). Florida law provides: ‘[A] court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals …An application for attorney’s fees, suit money, or costs, whether temporary or otherwise, shall not require corroborating expert testimony in order to support an award under this chapter. §61.16(1), Fla. Stat. (2012). Furthermore, in Norman v. Norman, 939 So. 2d 240, 241-42 (Fla. 1st DCA 2006), this court held that a trial court reversibly errs when it awards attorney’s fees without making the requisite findings as to the proper amount, as required by Fla. Patient’s Comp. Fund v. Rowe, All So. 2d 1145 (Fla. 1985). Even where the record supports awarding fees and costs, failure to include the necessary findings constitutes reversible error. Id. at 242; see also Ard v. Ard,765 So. 2d 106, 107 (Fla. 1st DCA 2000) (remand of attorney’s fee award required where the trial court made no findings as to the attorney’s hours expended, hourly rate, or reasonableness of the fee).”

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

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In making a division of property and assets in a divorce proceeding in Florida, the award of a ½ ownership interest in property as of a particular date entitles the recipient to share in the gains and losses in the account on the date of distribution. In Graham v. Graham the Florida Court of Appeal stated that: “JoAnn Graham appeals an order granting post-judgment relief on grounds it fails to effectuate the marital settlement agreement she and Nathaniel Graham entered into in September of 1994 in anticipation of the dissolution of their marriage later that year. She maintains the trial court erred both in calculating her share of the former husband’s 401 (k) account and in calculating her share of his Army pension. Persuaded she is right in both instances, we reverse and remand.

The parties’ twenty-year marriage ended with a final judgment of dissolution of marriage, entered on December 22, 1994, which did not specifically address either Mr. Graham’s Army pension or his 401 (k) account. The judgment ordered instead that the “Agreement entered into by the parties at mediation is hereby confirmed and made a part of this Final Judgment of Dissolution of Marriage, and the parties shall comply with its terms and conditions in their entirety. In September of 1994, the parties had signed a typewritten marital settlement agreement that gave Ms. Graham “10/23 of the Husband’s Army retirement as of the date of this agreement…and 1/2 of the Husband’s 401K retirement as of July 24, 1993’…

The phrase “1/2 of the Husband’s 401K” describes a one-half ownership interest in the 401 (k) account itself. Half ownership of any asset, real or tangible personal property…plainly means something other than entitlement to a fixed sum of money. The same is true of intangible personal property, the value of which may also fluctuate. If the parties wanted to agree to a specific dollar amount, they could have done so easily enough by specifying a sum certain…This ownership entitles her to gains (and puts her at risk of losses) on her share. See Hoffman v. Hoffman, 841 So. 2d 695, 696 (Fla. 4th DCA 2003) (holding wife’s entitlement to a specific share of her husband’s IRA account carried with it an entitlement to an equal proportion of the gains and losses until distribution).”

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In awarding alimony, the calculation of income from investments should reflect current reality. In Tarkow v. Tarkow, the Florida Court of Appeal stated that: “(WALLACE, Judge.) Based on claims by Stanley A. Tarkow (the Former Husband) that his financial circumstances had changed substantially and that Miriam R, Tarkow, n/k/a Katherine Kofler (the Former Wife), is in a supportive relationship, the circuit court entered an order that substantially reduced the Former Husband’s permanent periodic alimony payments. The Former Wife appeals the order, and the Former Husband cross-appeals. On the appeal, we affirm in part and reverse in part; we affirm on the cross-appeal… 

The circuit court also erred in using outdated information to calculate the Former Wife’s investment income. The final hearing before the GM was originally scheduled for April 12, 2011, but the parties could not conclude the matter within the time allotted on that day. Two months later, on June 16, 2011, the parties reconvened before the GM to complete the final hearing. At the continuation of the final hearing, the Former Wife proffered evidence that her investment accounts had been reduced in value in the amount of $61,146 during the period between the two sessions. Although the Former Husband did not dispute the accuracy of this evidence, he objected to its admission. The GM sustained the objection and refused to consider the updated information. As a result, the GM used incorrect information to calculate the Former Wife’s income from her investments. Thus the GM’s calculations substantially overstated the Former Wife’s investment income going forward. The GM’s calculations of the Former Wife’s income from her investments should have reflected current reality.”

To speak with an alimony attorney in Martin County, FL, contact Matthew Lane & Associates, P.A. at (561) 328-1111.

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In a divorce proceeding, an agreement to provide for a child’s college expenses includes an agreement to provide for room and board. In Weaver v. Corey the Florida Court of Appeal stated that: “The Former Wife and Former Husband entered into a marital settlement agreement…as part of the dissolution of their marriage….By the terms of the agreement, the parties contracted to use their best efforts to provide for the expenses of sending their children to private or parochial school, college, and graduate school.

Specifically, the agreement provided that ‘[b]oth parties agree that each will use their best efforts to provide funds’ and that ‘[t]he contribution of each parent shall be calculated on the basis of the ratio between their gross annual incomes as reported [i]n their most recent federal income tax return immediately preceding the academic year.’ The parties’ oldest child, James Dalton Weaver, graduated from high school in December 2008 and enrolled in college the next month. The Former Husband began to contribute to the cost of James’ college expenses. However, there came a time when the Former Husband did not pay the full amount of the college expenses as expected by his now adult son and the Former Wife, and they sued the Former Husband for breach of contract. The trial court found that the Former Husband had not used his best efforts in supplying the costs of his son’s college education and entered an order requiring the Former Husband to pay a total of $41,603 to the son and the Former Wife as the costs of the college education.

On appeal, the Former Husband argues that the trial court failed to take into account the Former Wife’s failure to exercise her best efforts to contribute funds, as is also required by the agreement. Specifically, the Former Husband maintains that the Former Wife was willfully underemployed causing her annual income to range from $300 to $8500. When compared to the Former Husband’s income, the ratio described in the marital settlement agreement required the Former Husband to pay the equivalent of 97.4% to 99.9% of the son’s college expenses. The Former Husband argues that the trial court’s failure to consider the Former Wife’s willful underemployment in considering whether she was exercising her best efforts was error. We disagree.

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In Florida, alimony is based on net income, not gross income. In Kingsbury v. Kingsbury the Florida Court of Appeal stated that in a divorce proceeding: “The ability to pay alimony should be based on the party’s net income. See Vanzant v. Vanzant, 82 So. 3d 991,993 (Fla. 1st DCA 2011) (holding that trial court erred by using figures that represented gross income rather than net income); Vega v. Vega, 877 So. 2d 882, 883 (Fla. 3d DCA 2004) (noting that former spouse’s argument that the award should be based on gross income rather than net income was incorrect because “[i]n reality, the case law states that net income is the relevant benchmark”) (citing Canakaris v. Canakaris, 382 So.2d 1197,1202 (Fla. 1980);

Lambertini v. Lambertini, 817 So. 2d 942,943 (Fla. 3d DCA 2002); Gandul v. Gandul, 696 So. 2d 466, 468 (Fla. 3d DCA 1997); de Armasv. de Armas, 471 So.2d 185,185 (Fla. 3d DCA 1985); Parhamv. Parham, 385 So. 2d 107,108 (Fla. 3d DCA 1980); Blum v. Blum, 382 So. 2d 52, 54 (Fla. 3d DCA 1980)).”

Here, the only mention in the final judgment of Mr. Kingsbury’ s income, and thus his ability to pay alimony, was his gross income. This is error. In Vanzant, this court recently reversed and remanded an award of alimony, explaining that the figures used “reflect[ed] the gross income shown on the former husband’s amended financial affidavit, not his net income.” 82 So. 3d at 993 (emphasis in original). Although it appears that Mr. Kingsbury may have had the ability to pay $4,000 per month in alimony, it is impossible to know for certain without some indication of his net income. See McCants v. McCants, 984 So. 2d 678, 682 (Fla. 2d DCA 2008) (“The trial court did not explain how it arrived at a net income amount of $4500 per month, and based on the record before us, we are compelled to reverse and remand for the trial court to reconsider this issue.”).”

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In a divorce proceeding involving the modification of child support, 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.  In Gilbert v. Cole, the Florida Court of Appeal stated that: “The final dissolution judgment named the parties’ two children and gave their birthdates. Addressing child support, the judgment provided: 6. Beginning on the day following closing of sale of the marital home, husband shall pay wife $3,500 per month child support. Such payment shall continue on the corresponding day of each successive month thereafter so long as wife continues to be primary residential parent for two children who have not become 18, married, or self-supporting, whichever soonest shall occur.

If either child upon becoming age 18 is a high school student projected to graduate from high school prior to becoming age 19, child support shall continue as to such child so long as the child otherwise is entitled to child support and continues to be a good faith student in pursuit of graduation from high school. The parties later entered into a court-approved mediated settlement agreement which reduced Former Husband’s child support obligation to $2,625 per month. Appellant then fell into arrears in his child support payments, prompting Appellee to petition the court for enforcement of the child support decree. Appellant later filed a petition for modification of his child support obligation in November 2010. Meanwhile, the parties’ oldest child reached the age of 18 in November 2008, and graduated from high school in June 2009… We interpret the divorce decree to create an allocated child support award, with each child to receive half of the amount until the child is emancipated, as defined in the agreement. Although the decree awards a single monthly sum for both children, it also provides that Appellant’s support obligation ended with each child’s respective emancipation…Where an award is allocated, an obligor is entitled to seek a modification retroactive to that event. 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.”

To speak with a Martin County, FL family law lawyer, contact Matthew Lane & Associates, P.A. at (772) 463-2121.

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In a child relocation proceeding, the court may only order temporary relocation where the relocating parent files and serves a petition. In Milton v. Milton, the Florida Court of Appeal stated that: “This Court reviews relocation determinations for abuse of discretion; however, the question of whether the trial court properly applied the relocation statute is a matter of law, reviewed de novo. Raulerson v. Wright, 60 So. 3d 487, 489 (Fla. 1st DCA 2011). Here, Mr. Milton relies on section 61.13001, Florida Statutes, and Raulerson, to assert that because Mrs. Milton did not comply with section 61.13001, the trial court erred in permitting the child’s relocation, even if temporary.

He is correct. Section 61.13001(3)(a) unambiguously requires that, absent agreement of both parents, a parent wishing to relocate file a petition and the petition be served on the other parent. §61.13OO1(3),Fla. Stat. Only where the relocating parent files a proper petition may the court order temporary relocation pending final determination. § 61.13001 (6)(b). This Court has previously made clear that these requirements are unambiguous and are “a clear statutory mandate.” Raulerson, 60 So. 3d at 490; see also Rivero v. Rivero, 38 Fla. L. Weekly D811, 2013 WL 1439731 (Fla. 4th DCA Apr. 10, 2013). Here, there was no such agreement or petition. And, Mrs. Milton does not contest that she and the child relocated to New York. Accordingly, she is subject “to contempt and other proceedings to compel the return of the child”; additionally, the court may grant other relief, including restraining relocation or ordering the child’s return. § 61.13001(3)(e),(6)(a),Fla. Stat. Therefore, the trial court erred in permitting the minor child’s temporary relocation pending final determination. See Raulerson, 60 So. 3d at 490.”

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

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In effectuating a division of property and assets in a divorce proceeding in Florida, enterprise goodwill represents the tendency of customers to return to a business regardless of the reputation of a person who works at the business. Personal goodwill is attributable to the reputation and continued participation of an individual who works at the business. The Florida Court of Appeals recently addressed this issue in Schmidt v. Schmidt. 

In Schmidt v. Schmidt, the Florida Court of Appeals stated that: “Enterprise goodwill, defined as the value of a business “which exceeds its tangible assets” and represents “the tendency of clients/patients to return to and recommend the practice irrespective of the reputation of the individual practitioner,” is a marital asset subject to equitable distribution. Thompson v. Thompson, 576 So. 2d 267, 269 (Fla. 1991).

Personal or professional goodwill attributable to the skill, reputation, and continued participation of an individual is not a marital asset. id. at 270 (explaining ” ‘[a]ny value which attaches to the entity solely as a result of personal goodwill represents nothing more than probable future earning capacity, which … is not a proper consideration in dividing marital property’ “) . Thus, the value of personal or professional goodwill must be excluded when assigning a value to a business for purposes of equitable distribution. If a business only has value above its assets if a spouse refrains from competing with the business, it is clear that the value is attributable to personal goodwill. “The existence of a covenant not to compete signals the existence of personal goodwill. “When valuing the enterprise goodwill of a business, the necessity of a covenant not to compete is significant as it signals the existence of personal goodwill, which cannot be included in determining the value assigned to the business for purposes of equitable distribution. Walton v. Walton, 657 So. 2d 1214 (Fla. 4th DCA 1995), and Held v. Held, 912 So. 2d 637 (Fla. 4th DCA 2005), illustrate the point. In Walton, the trial court was faced with the task of valuing the husband’s accounting practice. 657 So. 2d at 1214-15. The evidence established that it was the husband’s name on the door, the husband who conducted the majority of client conferences, and the husband who was responsible for bringing clients to the practice…The trial court accepted the wife’s expert’s valuation for purposes of equitable distribution. This court reversed, finding that “[t]he most telling evidence of a lack of any institutional goodwill was the wife’s expert’s testimony that no one would buy the practice without a noncompete clause.”

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Relocation Rulings

Relocation is a change in the location of the principal residence of a parent from his principal place of residence at the time of the last order related to time-sharing, or at the time of filing the pending action to establish or modify time-sharing “Prior to October 1, 2009, ‘relocation’ was defined in terms of a change of the primary residence of the child. Beginning October 1, 2009, ‘relocation’ is defined as: ‘a change in the location of the principal residence of a parent or other person 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… Based on section 61.13001 (1)(e) and A. F., the mother is correct in arguing that if 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.” Essex v. Davis.