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Child Custody & Visitation – Exposure to the Religious Practices of Both Parents in Florida Children may be exposed to the religious practices of both parents. “The parties disagree regarding the religious upbringing of the children. The mother wishes to raise the children in the Catholic faith, which is inconsistent with the father’s beliefs, or according to the mother, his lack thereof. Without a showing of harm to the children, the court should not infringe on either parent’s free exercise of his or her religious beliefs. Mesa v. Mesa, 652 So. 2d 456,457 (Fla. 4th DCA 1995). The court should not preclude either party from exposing the children to his or her religious practices absent a clear, affirmative showing that the religious activities are harmful to the children.” Winters v. Brown

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Enforcement – Contempt of Court in Florida

If a party has a good faith basis to questions whether payments are required, contempt of court is not the appropriate remedy. An order requiring payment is the more appropriate course of action. “Because the husband had a good faith basis to question whether the medical expenses for which the wife sought payment were reasonable and necessary, we conclude that the circuit court should not have held him in contempt. See Sulman v. Sulman, 510 So. 2d 908, 909 (Fla. 4th DCA 1987) (“We do not disapprove of the trial court’s decision not to hold the former husband in contempt, since his challenge to the request to pay appears to have been in good faith and his behavior does not appear to constitute willful disobedience of a court order.”) (citation omitted). We remand for the circuit court to vacate the order of contempt and to enter an order requiring the husband to pay the wife the final charge of $169,746.82 within thirty days of the court’s order. If the husband fails to comply with that order, then the wife may file a new motion for contempt.” Lustgarten v. Lustgarten.

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Alimony – Unallocated Alimony in Florida

An unallocated/undifferentiated award must differentiate between child support and alimony so that a reviewing court can determine if the support guidelines were followed. “A support award that fails to differentiate between child support and alimony is improper because it renders the appellate court unable to determine whether the trial court applied the statutory child support guidelines set forth in section 61.30. Blum v. Blum, 769 So. 2d 1142, 1143 (Fla. 4th DCA 2000). Those guidelines must be applied, even for temporary support purposes. Burkhart v. Burkhart, 620 So. 2d 225, 226 (Fla. 1st DCA 1993).” Nilsen v. Nilsen

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| Jun 18, 2011 | Division Of Property And Assets

Division of Marital Property and Marital Assets – Classification of Marital Assets in Florida

Assets and liabilities not in existence on the date of filing, the date of separation, or the date of entry into a separation agreement should not be classified as marital assets. In Fortune v. Fortune, the Florida Court of Appeal stated that…

“Relevant to the facts of this case, ‘[t]he cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is…the date of the filing of a petition for dissolution of marriage.’ § 61.075(7), Fla. Stat. (2009). Assets and liabilities not in existence on that date should not be classified as marital. See Schmitz v. Schmitz, 950 So. 2d 462, 463 (Fla. 4th DCA 2007); Byers v. Byers, 910 So. 2d 336, 344-45 (Fla. 4th DCA 2005).” 

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An order holding a party in civil contempt must recite the facts upon which the finding of present ability to pay is based. “An order holding a party in civil contempt must recite the facts upon which the finding of present ability to pay is based. Fla. Fam. L. R.P. 12.615(d)(1)” Elliot v. Palm Beach County Sheriff Ric Bradshaw

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In a child custody proceeding, a judgment can be issued against a party who fails to appear at a final hearing. However, the party failing to appear can challenge the proceeding under Rule 1.540(b). “This case, however, was not decided upon a default but upon a full hearing with witnesses and substantial evidence. The mother simply failed to show up at the hearing. She did not move to vacate the proceedings pursuant to Florida Rule of Civil Procedure 1.540(b) and has offered no reason, either in the trial court or in this court, as to why she absented herself from the hearing after receiving notice… This would be contrary to the best interest of the child. A parent should have the right to move to vacate a final custody judgment on the grounds allowed by Rule 1.540(b). At the hearing on the Rule 1.540(b) motion, the court may consider the absent party’ s grounds for failing to appear and hear any evidence that the party may have that would involve the party’s “meritorious defense” to the proceedings. See Webber v. Novelli, 756 So. 2d 164,165-66 (Fla. 4th DCA 2000) (noting that the trial court held an evidentiary hearing on the mother’s failure to attend). See also Elliott v. Aurora Loan Servs.,LLC,3l So. 3d 304,307 (Fla. 4thDCA 2010) (stating that to set aside judgment, the trial court must find that the movant has demonstrated excusable neglect, a meritorious defense, and due diligence in seeking relief).” Denker v. Denker 

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Income that can be derived from an IRA can be utilized to determine ability to pay. “The wife challenges the trial court’s inclusion of IRA income in its determination of her ability to support herself. She contends that the court erred as a matter of law in concluding that income from her IRAs and annuities could be imputed to her. We hold, however, that income from an IRA through a Regulation 72(t) withdrawal plan can be imputed to a spouse for purposes of determining an alimony obliga tion where the court can reasonably conclude that the principal of the IRA will not be invaded for the purpose of support…Taking these provisions together, a court must consider the financial resources distributed to the parties through the dissolution and all sources of income available, which includes payments available from annuities and retirement benefits. In this case that includes the income available from the IRAs and annuities… ‘A court should impute income that could reasonably be projected on a former spouse’s liquid assets.’… We would further note that our decision can work both ways. In a proper case, the court could consider income available to the paying spouse when determining an ability to pay alimony. In a case where a spouse may be claiming a reduction in earned income but with substantial IRA or other retirement plans, a court could impute income to a paying spouse pursuant to a 72(t) plan in order to assure that a spouse’s alimony needs are met.” Niederman v. Niederman

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If a party obtains an award of retroactive alimony, that party may also obtain prejudgment interest on the award. “Also, the Wife is entitled to prejudgment interest on the alimony arrearage owed by the Husband. See Burkley v. Burkley, 911 So. 2d 262, 271 (Fla. 5th DCA 2005) (“[T]he court…would err by declining to award prejudgment interest for arrearages. Courts must award prejudgment interest on arrearages found to be due in the final judgment.”); see also Miller v. Miller, 679 So. 2d 858, 858 (Fla. 1st DCA 1996) Gremel v. Gremel