Friday, June 29, 2012

Supreme Court Adopts New Withholding Form

The Florida Supreme Court adopted a new form, Florida Family Law Form 12.996(d), called a Florida Addendum to Income Withholding, meant to be filed along with IWO orders, form OMB 0970-0154.  Comments are accepted for sixty days.

Wednesday, June 27, 2012

Fourth District Refuses Review of Non-Final Order

The Fourth District Court of Appeal dismissed the appeal today in Jones v. Jones, in that the appeal was directed to an order denying exceptions, which is a non-final, non-appealable order.  The Court cited Murison v. Coral Park Props., Inc., 64 So.3d 1288, 1289 (Fla. 4th DCA 2011) in support.

Fourth District Reverses Retroactive Alimony Award

The Fourth District Court of Appeal ruled today in Hollingsworth v. Hollingsworth, in so doing affirming without comment most of the issues raised on appeal, but reversing as to the amount of retroactive alimony awarded to the wife.  The trial court found that the Appellant should receive a credit for funds already paid against the alimony due, but failed to award that credit in its final calculation, and was reversed for that reason alone.

Fourth District Reverses Denial of Fees, Equitable Distribution of Depleted Assets

The Fourth District Court of Appeal ruled today in Goldstein v. Goldstein, a case in which the lower court denied fees to the wife, as well as attributing to her joint marital funds used by her during the divorce for living expenses without any finding of misconduct.  The Court found error first with the lower tribunal’s failure to make findings as to need and ability to pay attorneys’ fees, but found that even if those findings had been made it would have been error to deny the wife her fees and costs.  In addition, the lack of any finding of misconduct required reversal of the lower court’s distribution of depleted assets used for support to the wife.

Email Service Required in September, 2012

This ruling by the Florida Supreme Court last week confirms the adoption of the new Florida Rule of Judicial Administration 2.516 (Service of Pleadings and Papers).  That rule requires in part that all documents required or permitted to be served on another party must be served by e-mail.  A lawyer upon appearing in a proceeding must now designate a primary email address, and up to two secondary addresses, for receiving service, after which service must be made by email.  A lawyer or party may request by motion to be excused from this requirement, and applications for subpoenas or documents served personally are excused.  The changes become effective September 1, 2012 at 12:01 A.M..

The full text of the new rule is as follows:

(a) Service; When Required. Unless the court otherwise orders, or a statute or supreme court administrative order specifies a different means of service, every pleading subsequent to the initial pleading and every other document filed in any court proceeding, except applications for witness subpoenas and documents served by formal notice or required to be served in the manner provided for service of formal notice, must be served in accordance with this rule on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them must be served in the manner provided for service of summons.
(b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service must be made upon the attorney unless service upon the party is ordered by the court.
(1) Service by Electronic Mail (“e-mail”). All documents required or permitted to be served on another party must be served by e-mail, unless this rule otherwise provides. When, in addition to service by e-mail, the sender also utilizes another means of service provided for in subdivision (b)(2), any differing time limits and other provisions applicable to that other means of service control.
(A) Service on Attorneys. Upon appearing in a proceeding, an attorney must serve a designation of a primary e-mail address and may designate no more than two secondary e-mail addresses. Thereafter, service must be directed to all designated e-mail addresses in that proceeding. Every document filed by an attorney thereafter must include the primary e-mail address of that attorney and any secondary e-mail addresses. If an attorney does not designate any e-mail address for service, documents may be served on that attorney at the e-mail address on record with The Florida Bar.
(B) Exception to E-mail Service on Attorneys. Service by an attorney on another attorney must be made by e-mail unless excused by the court. Upon motion by an attorney demonstrating that the attorney has no e-mail account and lacks access to the Internet at the attorney’s office, the court may excuse the attorney from the requirements of e-mail service. Service on and by an attorney excused by the court from e-mail service must be by the means provided in subdivision (b)(2) of this rule.
(C) Service on and by Parties Not Represented by an Attorney. Any party not represented by an attorney may serve a designation of a primary e-mail address and also may designate no more than two secondary e-mail addresses to which service must be directed in that proceeding by the means provided in subdivision (b)(1) of this rule. If a party not represented by an attorney does not designate an e-mail address for service in a proceeding, service on and by that party must be by the means provided in subdivision (b)(2) of this rule.
(D) Time of Service. Service by e-mail is complete when it is sent.
(i) An e-mail is deemed served on the date it is sent.
(ii) If the sender learns that the e-mail did not reach the address of the person to be served, the sender must immediately send another copy by e-mail, or by a means authorized by subdivision (b)(2) of this rule.
(iii) E-mail service is treated as service by mail for the computation of time.
(E) Format of E-mail for Service. Service of a document by e-mail is made by attaching a copy of the document in PDF format to an e-mail sent to all addresses designated by the attorney or party.
(i) All documents served by e-mail must be attached to an e-mail message containing a subject line beginning with the words “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number of the proceeding in which the documents are being served.
(ii) The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the sender’s name and telephone number.
(iii) Any document served by e-mail may be signed by the “/s/” format, as long as the filed original is signed in accordance with the applicable rule of procedure.
(iv) Any e-mail which, together with its attached documents, exceeds five megabytes (5MB) in size, must be divided and sent as separate e-mails, no one of which may exceed 5MB in size and each of which must be sequentially numbered in the subject line.
(2) Service by Other Means. In addition to, and not in lieu of, service by e-mail, service may also be made upon attorneys by any of the means specified in this subdivision (b)(2). Service on and by all parties who are not represented by an attorney and who do not designate an e-mail address, and on and by all attorneys excused from e-mail service, must be made by delivering a copy of the document or by mailing it to the party or attorney at their last known address or, if no address is known, by leaving it with the clerk of the court. Service by mail is complete upon mailing. Delivery of a copy within this rule is complete upon:
(A) handing it to the attorney or to the party,
(B) leaving it at the attorney’s or party’s office with a clerk or other person in charge thereof,
(C) if there is no one in charge, leaving it in a conspicuous place therein,
(D) if the office is closed or the person to be served has no office, leaving it at the person’s usual place of abode with some person of his or her family above 15 years of age and informing such person of the contents, or
(E) transmitting it by facsimile to the attorney’s or party’s office with a cover sheet containing the sender’s name, firm, address, telephone number, and facsimile number, and the number of pages transmitted. When service is made by facsimile, a copy must also be served by any other method permitted by this rule. Facsimile service occurs when transmission is complete.
(F) Service by delivery after 5:00 p.m. must be deemed to have been made by mailing on the date of delivery.
(c) Service; Numerous Defendants. In actions when the parties are unusually numerous, the court may regulate the service contemplated by these rules on motion or on its own initiative in such manner as may be found to be just and reasonable.
(d) Filing. All original documents must be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules. If the original of any bond or other document is not placed in the court file, a certified copy must be so placed by the clerk.
(e) Filing Defined. The filing of documents with the court as required by these rules must be made by filing them with the clerk, except that the judge may permit documents to be filed with the judge, in which event the judge must note the filing date before him or her on the documents and transmit them to the clerk.  The date of filing is that shown on the face of the document by the judge’s notation or the clerk’s time stamp, whichever is earlier.
(f) Certificate of Service. When any attorney certifies in substance:
”I certify that a copy hereof has been furnished to (here insert name or names and addresses used for service) by (e-mail) (delivery) (mail) (fax) on ..... (date) …..
________________________ Attorney” the certificate is taken as prima facie proof of such service in compliance with this rule.
(g) Service by Clerk. Service of notices and other documents required to be made by the clerk must also be done as provided in subdivision (b).
(h) Service of Orders.
(1) A copy of all orders or judgments must be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment. No service need be made on parties against whom a default has been entered except orders setting an action for trial and final judgments that must be prepared and served as provided in subdivision (h)(2). The court may require that orders or judgments be prepared by a party, may require the party to furnish the court with stamped, addressed envelopes for service of the order or judgment, and may require that proposed orders and judgments be furnished to all parties before entry by the court of the order or judgment. The court may serve any order or judgment by e-mail to all attorneys who have not been excused from e-mail service and to all parties not represented by an attorney who have designated an e-mail address for service.
(2) When a final judgment is entered against a party in default, the court must mail a conformed copy of it to the party. The party in whose favor the judgment is entered must furnish the court with a copy of the judgment, unless it is prepared by the court, with the address of the party to be served. If the address is unknown, the copy need not be furnished.
(3) This subdivision is directory and a failure to comply with it does not affect the order or judgment, its finality, or any proceedings arising in the action.

Friday, June 22, 2012

Fourth District Affirms Timesharing Decree

The Fourth District Court ruled this week in Culbertson v. Culbertson, a difficult case focused on the lower court’s decision to permit timesharing to the Husband without the restrictions sought by the Wife as a result of the child’s medical needs.  The Fourth DCA affirmed on the basis that there was sufficient evidence supporting the finding that the Husband was prepared for any medical emergency and aware of the child’s needs, but with a dissent from Judge Warner disputing the existence of that evidence.

Fourth DCA Reverses for Departure from Agreement

The Fourth District Court of Appeal ruled this week in Simon v. Simon, reversing the lower tribunal’s order which disposed of the parties’ collection of art.  The Husband appealed on the basis that the parties’ premarital agreement provided for a different distribution, and the Fourth District agreed that the clear and unambiguous language required a different result than the one ordered.

Friday, June 8, 2012

Fifth District Court Reverses Injunction

The Fifth District Court of Appeal rejected a final injunction today in Williams v. Williams.  The trial court made no finding of domestic violence, and the petitioner presented no evidence that could support a finding that violence had or was likely to occur.  As such, the injunction was reversed.

Thursday, June 7, 2012

Florida Supreme Court Updates Forms

The Florida Supreme Court issued an opinion regarding the Florida Family Law Forms today, the full text of which is available here.  In that ruling, the Court reports the results of an internal review which determined the need to update the forms for sexual, dating, domestic, and repeat violence in order to (1) conform with the changes to Rule of Judicial Administration 2.540 regarding notice required under the Americans with Disabilities Act (2) remove unnecessary requests for personal information such as the place of marriage, place of birth, or gender of a minor child, (3) add language to the forms giving specific notice to those who are served with temporary injunctions warning them that failure to appear at the final hearing may result in a permanent injunction, (4) add language to the petitions requesting a temporary injunction which specifically does, in fact, request a temporary injunction, (5) updates language regarding health and dental insurance to conform with current statutes, and (6) adds each judicial circuit’s depository as an acceptable entity to accept payments.  The Court released the forms immediately ready to use, but will take comments for sixty days.

Third DCA Reverses Denial of Fees

The Third District Court of Appeal reversed yesterday in De Campos v. Ferrara, a case in which the lower court denied fees to the former husband on an enforcement action after finding that the action was truly for declaratory relief, like the action in Flanders v. Flanders, 516 So.2d 1090 (Fla. 5th DCA 1987), no enforcement fees were appropriate.  The Third District reversed on the grounds that the action was, in fact, in the nature of an enforcement claim, that, as a result, F.S. 61.16 (2011), and not the parties’ agreement alone, applied to the fee request, and that a hearing to determine entitlement under that authority was required.

Wednesday, June 6, 2012

Fourth District Court Reverses Order Compelling Child’s Return

The Fourth District Court of Appeal reversed today in Essex v. Davis, a case in which the parties’ child was ordered to be returned to Palm Beach County for a hearing to determine whether the mother had relocated to Louisiana without leave pursuant to F.S. 61.13001 (2011).  The District Court reversed on the basis that the record was not clear that the relocation statute even applied, in that the Mother argued that she was already living in Louisiana at the time of the court’s order establishing timesharing.  The Fourth District in reversing required an evidentiary hearing to determine whether or not the statute applies.

Fourth DCA Reverses Amount of Imputation

While the Fourth District Court of Appeal found evidence supporting the imputation of income to the Appellant in Piedra v. Piedra today, it reversed as to the amount imputed.  This was because the lower court imputed the former husband not his former earnings at a marital business, but rather the gross profit of the business without regard to expenses or deductions, and without regard to salary paid to the former wife from the same business.  The lower court was also reversed for failing to apportion the cost of the children’s health insurance between the parties.

Fourth District Reverses Alimony Award

The Fourth District Court reversed the amount of alimony awarded in Green v. Green today, on the basis that the magistrate below should have imputed income to the former wife, and should have considered the net effect of distributing the parties’ credit card and other debt to one party alone.

Fourth District Court Reverses Final Judgment in Part

The Fourth District Court of Appeal reversed the lower court’s Final Judgment in part today in the case of Vitro v. Vitro, first finding error in the lower court’s apparent award of alimony prior to the date of filing of the divorce without any finding justifying such an award, and second for allocating the entirety of the parties’ credit card debt to the Husband on the basis of an agreement not present in the record.  The Fourth District also reversed in that the lower court failed to identify the party responsible for remaining debt to a pre-paid college fund, car leases, and other expenses.

Fourth District Court of Appeal Reverses Injunction

The Fourth District Court of Appeal today reversed a final injunction in Gayoso v. Gayoso, a case in which the Appellant had filed a motion after entry of a final judgment of injunction claiming ineffective service and supported with two affidavits.  The lower court denied relief from the judgment without holding an evidentiary hearing.  The Fourth District, citing Southeastern Termite & Pest v. Ones, 792 So. 2d 1266 (Fla. 4th DCA 2001), ruled that the Appellant had been entitled to an evidentiary hearing and a chance to prove by clear and convincing evidence that service was in fact ineffective.

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