Friday, July 9, 2010

Fifth District Court Recedes from its Rejection of Bridge The Gap

The Fifth District Court today issued an opinion in Engesser v. Engesser, a case which allowed only limited review due to the lack of a transcript, but did provide the Court with an opportunity to recede from its prior rulings, in Martin v. Martin, 582 So.2d 784 (Fla. 5th DCA 1991), which disapproved of bridge the gap alimony. The ruling is narrowed to the existence of an award of this type, and does not provide a specific basis for the permissibility of the award, but each District Court has now recognized the existence of the form of relief and its potential propriety.

Fifth DCA Upholds Choice of Law Provision Despite Public Policy Argument

The Fifth District Court of Appeal issued its ruling in McNamara v. McNamara today, holding in part that the appeal of the lower tribunal's use of a choice of law provision was not reversible despite a claim by the Wife that, as Georgia recognizes no spousal privilege, the foreign law was contrary to Florida's public policy.

Thursday, July 8, 2010

Disqualification of D.O.R. as Counsel Reversed

The First District Court, in an opinion issued yesterday in Dept. of Revenue v. Collingwood and Gray reversing the lower tribunal's ruling that the Department of Revenue was prohibited from representing a father seeking modification of support based on the father's unclean hands due to child support arrears. The Mother below, a former DOR client, had asked for disqualification of the D.O.R. based on conflict of interest. The Court granted the motion, but on the grounds that the father was in arrears and "it would be inequitable to allow the department to represent him against the mother, and that the department's efforts should be directed at enforcement of the existing support order." The First District first explained that there was no conflict, as the DOR's counsel represents the department and not either parent. As to the child support arrears, the Court of Appeal found that the statutory requirement of a review of child support obligations every three years and modification if appropriate is not linked to whether the payor is current in support payments.

Second District Narrowly Reverses in Grigsby

The opinion was released in Grigsby v. Grigsby by the Second District Court of Appeal yesterday. The lower tribunal had "characterized the Mother's actions as the worst case of parental alientation that it had ever seen" and the ruling below gave sole parental responsibility to the Father and denied all timesharing to the mother. The Court only narrowly reversed that ruling in holding that when a lower tribunal uses its discretion to suspend timesharing, conditions must be contained in the Order which can be met to reestablish a relationship between parent and child. In the lower tribunal's order that decision was relegated to the Father and various unidentified professionals, and as such the non-final Order was remanded for the trial court to set forth the specific steps permitting reestablishment of time-sharing and guidance as to the level of proof required. The lower court was also required to reserve jurisdiction to consider ongoing progress.

Second District Reverses from Face of Final Judgment

The Second District Court issued its opinion in Smith v. Smith yesterday, and in a rare move overturned the Final Judgment below without the benefit of any transcript of the proceedings. The Court of Appeal found that there were errors evident from the Judgment itself as to support and equitable distribution calculations. However, while a lengthy discussion is contained in the opinion as to the effect of adultery on timesharing issues, and an appearance of error seems to be raised in the lower court's ruling as to timesharing issues, that portion of the judgment was affirmed based on the lack of a transcript permitting a full review.

Third District Rejects Claim of Imputation

The Third District Court of Appeal issued its ruling yesterday in Boyd v. Alonso-Boyd, reversing in part and affirming in part an Order below approving the report of a General Magistrate. The Husband succeeded on appeal in his claim that, due to timely objection to the Magistrate hearing the issue of temporary attorneys' fees, the report lacked authority to rule on that claim. However, the opinion rejected the Husband's argument that imputation of income to him was unsupported by findings in the order, on the ground that the order specified no imputation, but rather relied on the Husband's own testimony.

Thursday, July 1, 2010

New Alimony Statute Takes Effect Today

Effective today, all initial awards of alimony and modifications of such awards are subject to the new provisions of Florida Statute §61.08. The new form of the statute has not yet hit the Online Sunshine website, but no doubt will today. Changes from the previous form of that statute include:

  • The addition of specific references to "bridge-the-gap" and "durational" alimony, as well as a provision for combined awards of various types of alimony;
  • A requirement that the Court first make a specific factual determination as to the need for alimony and the ability to pay it;
  • An additional requirement spelled out that the Court consider earning capacities, educational levels, vocational skills and employability in granting alimony;
  • A requirement that the Court consider "The responsibilities each party will have with regard to any minor children" the parties have in common in granting alimony;
  • A requirement that the Court consider the treatement and consequences of taxation of any alimony aware, including designations of alimony as nontaxable or nondeductible;
  • A specific reference to income available through investments of assets held by a party in considering all available sources of income;
  • An explicit statement of a rebuttable presumption that a marriage less than 7 years is short-term, a moderate-term (grey area) marriage is between 7 and 17 years, and a long term marriage is over 17 years;
  • A statutory definition of bridge-the-gap alimony and a limit of two years on such an award, as well as a provision making bridge-the-gap alimony non-modifiable in amount or duration;
  • Specific details on rehabilitative alimony award, which may be modified, but which requires a specific plan for rehabilitation;
  • The addition of the concept of "durational alimony" for a set time following a marriage of short or moderate duration, the length of which can only be modified except under exceptional circumstances;
  • A limitation on permanent alimony to the "needs and necessities of life" per Levine v. Levine, 964 So.2d 741 (Fla. 4th DCA 2007) and related authority;
  • And similar modifications, largely in keeping with case law developments.
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