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Unmarried father’s rights were discussed in a recently decided case captioned State of Florida Department of Revenue v. Augustin. The Florida statutes provide for a mechanism under which men may disestablish paternity and terminate their child support obligation. In order to do this a man must prove seven things. First, that since the initial establishment of the father’s paternity, he became aware of newly discovered evidence that proves that he is not the father of the child. Second, a paternity test was properly conducted which demonstrates that he is not the father of the child. Third, that the petitioner is current on his child support payments or that there is a justification for his failure to do so. Fourth, that the petitioner has not adopted the child. Fifth, that the child was not the produce of in vitro fertilization. Sixth, that the petitioner did not take any action to deprive the actual father from asserting his righ ts. Seventh, that the child was less than eighteen years of age when the petition was filed.

State of Florida Department of Revenue v. Augustin, involved a paternity appeal by the Florida Department of Revenue of a decision by the lower court. In 2013, the trial court ruled that the alleged father was the father of a child. The alleged father filed a petition to disestablish paternity in 2015. The father’s petition alleged that a 2009 DNA test constituted newly discovered evidence that proved that he was not the father of this child. The father alleged that there was a 99.1% probability that he was not the father of the child. The trial court agreed with the alleged father and disestablished his paternity. The trial court ruled that the father was aware that the child was not his since 2009, and that the mother and the actual father were currently living with the child.

The trial court granted the alleged father’s petition to disestablish paternity. The Department of Revenue appealed this decision based upon the fact that the trial court did not make the required findings under the Florida Statutes. Because the trial court did not make the seven required findings under Florida Statutes, the Court of Appeal reversed the trial court’s decision.

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A modification of alimony based upon a party’s retirement may be granted when the trial court finds that the party’s retirement is reasonable. In determining whether a party’s retirement is reasonable, a Court will look at the parties’ age, health, and motivation for retiring. In determining whether a reduction in alimony based upon a party’s retirement will be permitted, the trial court will also examine the type of work that the paying party performs and the age at which others in that line of work customarily retire.

In a recently decided case captioned Dogoda v. Dogoda, the husband appealed an order denying his petition to modify his alimony obligation. The parties married in 1991. The husband filed for divorce in 2013. The parties entered into a marital settlement agreement that resolved all of their issues. The agreement was executed in September of 2014, and was not incorporated into a Final Judgment of Dissolution until December of 2014. Due to his poor performance in physical fitness drills that took place after September of 2014, the Husband decided to retire in January of 2015. The Husband then petitioned for a modification of his alimony obligation. The lower court held that the Husband’s retirement was contemplated prior to the final judgment being entered. The Florida Court of Appeal reversed the trial court’s decision.

The Florida Court of Appeals held that a modification of alimony may be granted in Florida when the parties enter into a marital settlement agreement pertaining to the payment of alimony and the financial ability of either of the parties changes. The petitioner must show that there was a substantial change of circumstances, that the change was not contemplated at the time of the final judgment, and that change is material, permanent, sufficient and involuntary. A party’s retirement may warrant a modification of alimony payments. However, a modification of alimony cannot be based on factors known to the parties when the final judgment was entered. In cases that involve marital settlement agreements, the effective date of the marital settlement agreement establishes the date to which a trial court should look in determining whether a substantial change in circumstances was contemplated by the parties. In this case, the Florida Court of Appeal found that the former husband’s retirement was not contemplated at the time that the marital settlement was entered into and reversed the trial court’s order denying the Former Husband’s supplemental petition for modification of alimony. The case was then remanded to the trial court.

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A Division of Property and Assets case was recently decided by the Florida court of Appeal. In a case captioned Ramos v. Ramos, the Court ruled that, under Florida law, the appreciation in the value of a nonmarital asset that results from the expenditure of marital funds or from marital labor is a marital asset. For example, if a $500,000 home is owned by one of the parties prior to the marriage and the value of that home is increased to $1,000,000 as a result of marital efforts, the increase in the value of the home is considered to be a marital asset subject to division by the Court.

In the Ramos case, the parties married in 2000, and the Husband filed for divorce in 2014. The Husband maintained that his vending machine business was a nonmarital asset because the business was started ten years prior to the date of the marriage. The Husband contended that because the business was a nonmarital asset, it was not subject to equitable distribution by the Court. The Wife contended that the business was a marital asset. The evidence at trial showed that the Husband’s business lost value during the course of the marriage. The trial court agreed with the Wife and found that the business was a marital asset. The Husband appealed the trial court’s ruling. The Florida Court of Appeal agreed with the Husband and reversed the trial court.

Regarding the Division of Property and Assets, the Florida Court of Appeal ruled that the business was a nonmarital asset. Since it was a nonmarital asset, only the enhanced value of the business during the marriage was subject to equitable distribution by the Court. The enhanced value of a premarital asset that results from efforts by either party during the course of the marriage is marital property. Since the Husband proved that the business was formed ten years prior to the date of the marriage, the burden of proof shifted to the Wife to prove that the business became partially marital through the efforts of the Husband during the course of the marriage. Since the value of the business actually went down during the course of the marriage, the Wife was unable to meet this burden of proof. Accordingly, the business was found to be a nonmarital asset that was not subject to equitable distribution.

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In a recent decided alimony case captioned Shimer v. Corey, the Florida Court of Appeal held that the lower court made a mistake when it required the Husband to purchase a life insurance policy as part of the alimony award in this case. The Florida statutes permit a court to require a party to maintain a life insurance policy to secure alimony payments. In making a decision as to whether a payor should be required to purchase insurance to secure an alimony award the trial court should consider the following factors.

First, is insurance needed? Second, is insurance available? Third, what will the policy cost? Fourth, what will be the financial impact on the payor of requiring the purchase of life insurance? In the case at bar, the lower court failed to conduct the aforementioned analysis, and the case was reversed. Additionally, the appellate court independently reviewed the record and determined that life insurance was not appropriately awarded in this case.

To speak with an alimony attorney in Palm Beach Gardens, contact Matthew Lane & Associates, P.A. at (561) 651-7273.

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This paternity case involved an unmarried mother and an unmarried father in Hillsborough County, Florida. This litigation started when the child was 16 months old. The parties were initially able to settle matters involving their personal property. However, disputes about the child continued for many years. After an August 2008 hearing, the trial court entered a temporary order awarding majority time-sharing to the father. The remaining issues were referred to a general magistrate. The general magistrate did not conduct a hearing on these issues for two years. One of the parents objected, and the reviewing court did not issue an order for three more years. The mother objected to this ruling and the court did not rule on the mother’s objections for another two years.

The father was then found in contempt of court for violating the temporary timesharing order. In the contempt order, the father lost his majority timesharing with the child. The court granted a custody modification and awarded the mother equal timesharing. The father was also admonished not to exercise sole parental responsibility and was ordered not to engage in conduct that hindered effective co-parenting.

The Court of Appeal ruled that trial courts in Florida cannot modify custody orders as a sanction for contempt of court. Motions for contempt are filed to enforce the provisions contained in parenting plans contained in court orders. Trial courts are prohibited from modifying custody provisions as a sanction for a party’s contempt of court. The reason for this is that the penalty of changing custody does not compel compliance. Instead, it punishes the child for the parent’s misconduct. The Florida Court of Appeal ruled that the better course of action is to grant additional visitation or make-up visitation. The Court held that a trial court may not sanction a parent by reducing his or her timesharing. This sanction is not permitted as a matter of law in the State of Florida. Accordingly, the trial court’s order was reversed and the case was remanded to the trial court.

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In a recent paternity case captioned L.G. v. Department of Children and Families, the legal father of a child appealed an order denying his Petition to Disestablish Paternity of a child. The legal father was not married to the child’s mother. However, the legal father acknowledged his paternity on the child’s birth certificate. The legal father filed a Petition to Disestablish Paternity based on newly discovered evidence. The newly discovered evidence was that a recent DNA test showed that he was not the actual father of the child. The trial judge denied the father’s Petition based upon the fact that another father was unwilling to step in and serve as the father of this child.

In a case captioned Department of Health and Rehabilitative Services v. Privette, the Florida Supreme Court ruled that before a blood test can be required to prove paternity in cases where a child is born legitimate, the trial court must find that the dependent child’s best interests will be served by the blood test. Privette only applies in those cases where a legal father faces the threat of losing parental rights and a child faces the threat of being declared to be illegitimate. After Privette was decided; in 2006, the Florida Legislature passed the Paternity Disestablishment Statute. By passing the Paternity Disestablishment Statute, the Legislature provided that even if paternity has been established, there is still a mechanism for a man to use to disestablish paternity and avoid child support. The lower court in this case was reversed because it ruled that another father must be willing to establish paternity in order for a petition for disestablishment of paternity to be granted. The new Paternity Disestablishment statute contains no such requirement.

The best interest of the child inquiry only applies in cases where the legal father faces the threat of losing parental rights and the child faces the threat of being declared to be illegitimate. Therefore the trial court’s order was reversed and the case was remanded for further proceedings.

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A modification of alimony is permitted by the Florida Statutes. In a recently decided case captioned Kallett v. Kastriner, the Florida Court of Appeal stated that the right to apply for a modification of alimony may only be waived in an agreement if the language in the contract contains a waiver that is clear and unambiguous, or if the agreement is written in a manner that can lead to no other conclusion but that the parties intended there to be a waiver of this right.

In this case, the Husband and Wife were divorced in 2006. The lower court ordered the Husband to pay permanent alimony to his wife. In 2008, the husband and wife entered into an agreement in which they agreed to reduce the Husband’s alimony by $500.00 per month due to the diminution of his income. The lower court approved this agreement. In 2014, the Husband sought another reduction in his alimony. The Wife opposed this reduction unless the Husband was involuntarily unemployed. The Wife argued that the 2008 agreement contained a provision that said that the Husband could only reduce his alimony obligation if he was involuntarily unemployed. The Wife argued that since the Husband was not involuntarily unemployed, he was not entitled to seek a modification. The trial court agreed with the Wife’s construction of this provision and granted the Wife’s Motion for Summary Judgment against the Husband.

In Kallett v. Kastriner, the Florida Court of Appeal stated that unless a party expresses a clear and unambiguous intent to waive his or her right to obtain a modification of alimony, a court cannot find that a party has waived this statutory right. A supplemental petition for modification of alimony should only be denied when the agreement provides an irrevocable and unambiguous waiver of the right to seek a future modification. In this case the agreement stated that the Husband could seek a reduction of his alimony obligation if he was involuntarily unemployed. However, it was unclear as to what period of time this agreement applied. Therefore the Court found that there was no irrevocable and unambiguous intention expressed in the agreement to waive all future modifications.

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In a recent alimony case captioned Gillette v. Gillette, the Florida Court of Appeal refused to impute income to a small business owner who chose to continue working in his own business rather than working for a larger employer.

The parties in this marriage were married for twelve years. The Husband was an engineer at a technology company. In 2001, the Husband started a computer storage business. He operated the computer storage business on a part time basis, and continued to work at the technology company until 2004. In 2004, the Husband resigned from the technology company and started working full time at his own computer storage business.

The Wife did not object to this arrangement until the divorce was filed. After the divorce was filed, the Wife objected to Husband working in his own computer storage business. She argued that the Husband was voluntarily unemployed and presented testimony from a vocational expert that Husband could earn significantly more as an employee of a larger company.

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The Division of Property and Assets statute in Florida classifies property as marital assets and nonmarital assets. A divorce court divides marital assets between the parties. However, nonmarital assets are retained by their owner. When a nonmarital asset is enhanced in value by marital labor or by marital money, the enhancement in value itself becomes a marital asset. In a recently decided case captioned Higgins v. Musso, the wife received a home as part of her divorce from her first husband. She borrowed money from her parents to buy out her first husband’s interest in the property. The wife’s mother filed a lien on the property which proved that the wife borrowed money to purchase and renovate the home. The wife also utilized marital funds to fix the property after it was damaged by two hurricanes. The wife painted the ceiling, installed new carpet, and put in a new roof. Insurance proceeds paid for some of the repairs. The parties took out a line of credit to build the marital home and took out a loan to repay the line of credit. The home sold for over a million dollars. The sale proceeds were deposited into a bank account. The trial court ruled that the entire proceeds from the sale of the home were marital assets.

The Florida Court of Appeal reversed the trial court and ruled that the expenditure of marital funds to improve a nonmarital asset does make the entire asset a marital asset. Only the increase in the value of the asset is considered to be a marital asset. The party that asserts that they are entitled to receive the benefit of the increase in value of the home has the burden to prove that an enhancement to the value of the home occurred. Once that party proves that marital funds or marital labor were used to enhance the value of the property, the other party has the burden to show that a portion of the increased value should not be included in the division of property and assets. The trial court must determine the amount of the enhancement and must determine which part of the enhancement was attributable to marital money or marital labor. The court should look at the value of the property prior to the enhancements and the value of the property after the enhancements were made. The court should then determine the amount of the appreciation that is attributable to marital labor or and the amount of the appreciation that is attributable to marital money.

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

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In a recently decided child relocation case, the parties had two minor children. The Wife wanted to relocate to Virginia with the children. The Husband opposed the relocation. The parties lived in Virginia for many years prior to moving to Florida. After the parties lived in Florida for two years, the wife filed a petition for divorce. The wife requested that the trial court permit her to relocate with the children because she believed that the relocation would be in the children’s best interest. Additionally, she argued that the relocation would eliminate her need to constantly travel for work.

The Florida Court of Appeal ruled that the parent desiring to relocate has the initial burden of proof to show that the proposed child relocation is in the best interests of the children. Once the parent desiring to relocate meets this initial burden of proof, the burden of proof then shifts to the parent who opposes the relocation. A trial court is not permitted to permit or deny a relocation based on events that may occur in the future. A trial court cannot consider events that are anticipated or have the potential of occurring in the future. Relocation decisions must be made as of the time that the final hearing takes place. A court may not make its determination based upon whether a relocation would be in the best interests of the children in the future, because the relocation factors could change with the passage of time. A trial court cannot attempt to predict whether an event will or will not occur in the future and cannot base its decision upon an attempted prediction.

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