Skilled Family Law Counsel

Default Judgments In Florida

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 

Alimony – Income derived from an IRA

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

Retroactive Alimony – Prejudgment Interest | Lane & Associates

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 

Unallocated Alimony in Florida

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

Exposure To The Religious Practices Of Both Parents In Florida

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

Child Support – Retroactive Child Support in Florida

If the obligor fails to demonstrate his or her income during the retroactive period, the Court shall apply the current child support guidelines to calculate retroactive child support payments. “In addition, the ALJ erred in using Finch’s current monthly income to compute the retroactive support obligation. The use of current income is permissible when the obligor fails to demonstrate his or her actual income during the retroactive period. See § 61.30(17)(a), Fla. Stat. (2011) (providing that the ‘[f]ailure of the obligor to… demon­strate [his or her actual income] shall result in the court using the obligor’s income at the time of the hearing in computing child support for the retroactive period’).” Finch v. Dep’t of Revenue o/b/o John-Jules 

Rehabilitative Alimony in Florida

(ix) An award of rehabilitative alimony must provide an end date for the payments. “Although the final judgment awards the Former Wife $3500 a month as rehabilitative alimony and states that the purpose was for the Former Wife to complete her education, the trial court did not provide an end date for the payments. The Former Husband argues that such an open-ended award is erroneous, and we agree. Draulans v. Draulans 

Effect of Market Conditions on Investments in Florida

Once a party is ordered to make an equitable distribution of funds, even if the value of those funds is diminished by market conditions, the dollar amount that is required to be distributed will not be diminished. “Even if Former Wife’s half of the funds diminished due to market conditions, she was still required to pay Former Husband one-half of the investments as of November 2007. If she was unable to pay that one-half from her portion of the funds, she was to use other funds to ensure he still received the same amount he was owed years ago.” Shinitzky v. Shinitzky

Permanent & Rehabilitative Alimony in Florida

The remedies employed by the trial court should be viewed as a whole to determine whether they accomplish equity between the parties. “A trial court has broad discretion in determining which remedy to apply to accomplish equity between the parties in a dissolution proceeding. See Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla. 1980). Such remedies include lump sum alimony, permanent periodic alimony, rehabilitative alimony, child support, special equity in property and the award of exclusive possession of property. Id. at 1202. In reviewing an order of dissolution, the remedies employed by the judge to accomplish equity between the parties should be reviewed as a whole since they are ‘interrelated’ and ‘part of one overall scheme.’ Id.” Sellers v. Sellers

Alimony – Findings of Fact Regarding Short Term Marriage in Florida

In awarding alimony, a trial court must make findings of fact for each factor, even if alimony is denied. “Here, the court simply denied the Former Wife’s request for alimony because the Former Husband was going to make an equalizing payment and this was a short-term marriage. However, the trial court did not address all of the appropriate factors required by the 2009 statute.” Witt v. Witt.