FAMSEG

AUGUST 2009

Dear Reader,

Welcome to the August edition of FAMSEG.  We're in the "dog days" of summer, and the only things buzzing are the  mosquitoes.   Days like this bring to mind our unofficial state motto:  "It's the heat AND the humidity! "  Anyway, we have an updated schedule of upcoming CLE events, more recent case law digests, and our feature article discusses the recent Florida Supreme Court decision, D.C.F. v. P.E., dealing with consents to termination of parental rights by failing to appear at the adjudicatory hearing.  

Enjoy. And, if there is something you'd like to see featured in an upcoming issue, drop me a line (j.a.moring@gmail.com).

- Jack Moring (Editor)

Upcoming CLE  Opportunities FRIDAY, AUGUST 14, 2009:   DOMESTIC RELATIONS LEGISLATIVE UPDATE 2009 (TELEPHONIC AND LIVE) 12:30 - 2:30 P.M. DOWNLOAD BROCHURE HERE. TO BE HELD AT THE RITZ CARLTON GOLF RESORT IN NAPLES; FOR RESERVATIONS, CALL 1-800-241-3333 OR (239) 593-2000. --------------------------------- OTHER UPCOMING SEMINARS: 09/17/2009 Equitable Distribution Location: Hilton Ft. Lauderdale Airport 10/14/2009 Telephonic Seminar: Marketing and Law Office Management 11/04/2009 Telephonic Seminar: Case Law Update 12/09/2009 Telephonic Seminar: Attorney's Fees, Charging Liens and Provisions in Contracts 01/13/2010 Telephonic Seminar Avoiding Malpractice 02/05-06/2010 Marital and Family Law Review Course Location: Disney Yacht and Beach Club Resort 02/10/2010 Telephonic Seminar Usual Assets for Distribution 03/10/2010 Telephonic Seminar Ask an Expert about General Magistrates 04/14/2010 Telephonic Seminar Ask an Expert about Guardians Ad Litem AND MORE (SEE THE SECTION WEBSITE FOR MORE INFORMATION) Recent Cases of Interest First DCA -- Welch v. Welch (7/24/09) Contains a good discussion of the current status of the law among the DCAs concerning a party's requirement to object to any deficiencies in findings of fact in a final judgment by filing a motion for rehearing in the lower court in order to preserve those issues for appellate review. Access opinion here. Second DCA -- Kamenski v. Kamenski (7/29/09) FH sought downward modification of alimony three years after dissolution of marriage.  At time of divorce, in 2004, FW earning $17,500 per year to FH's $54,000.00.  At time of modification, FW's income had increased to $41,000 per year, and FH was earning $50,000.00 per year.  Trial court denied modification.  Second DCA reversed and remanded, finding that this was not a case where the FW's income increase was anticipated; therefore, the trial court's finding to that effect not supported by the evidence.  Access opinion here. Third DCA -- Alcantara v. Alcantara (7/29/09) 19-year marriage.  H worked throughout marriage, first in military, then in private sector.  At time of dissolution, H earning $6,800 per month in income and approximately $1,800 per month in military retirement.  W was homemaker until latter years of marriage, when she obtained bachelor's degree, then a master's degree.  At time of dissolution, W earning approximately $2,100 per month.  Trial court denied W's request for permanent periodic alimony, ordering B-T-G alimony of $1,300 per month for 3 years.  Third DCA reversed, finding that presumption of permanent alimony in this long-term marriage not overcome by the evidence.  Factors supporting the request: length of marriage, W's role as homemaker for majority of marriage and the large disparity in income.  Access opinion here. Fourth DCA -- Shinitzky v. Shinitzky (7/22/09) Prior to marriage, H had a business and sold it for $8 million.  Shortly after the marriage, H's broker made off (or is it now spelled madoff?) with it.  Parties spent two years together in litigation trying to recoup the money.  H moved out and spent another two years on his own trying to recover it.  He finally settled the case for $5.6 million and a year later filed for divorce.  W alleged that the $5.6 million is marital. H said no.  Trial court agreed with H, and Fourth DCA affirmed.  No evidence that any of the marital labor or funds in connection with the litigation enhanced the value of the settlement inasmuch as "there was no evidence presented as to the actual value of the cause of action at its inception."  A most interesting case.  Access opinion here. Fifth DCA -- Lane v. Lane (07/31/09) Parties divorced in 1999, agreeing that Mom would be the primary residential parent of their son, then six, who had "significant health issues."  In 2006, Mom sought an increase in child support, and Dad sought a modification of custody to a rotating custody schedule.  Trial court granted Dad's request, citing five reasons in so doing.  Fifth DCA reversed, saying that four of the five stated reasons were insufficient to meet "the stringent standard that must be met for a court to change the custody designation in the final judgment based on the parties' agreement."  The fifth reason (Mom's continuing to sleep in the same bed with the child) was a closer call, but the Fifth found that the evidence presented on that issue was simply not enough.  Access opinion here.

FEATURE ARTICLE CASE OF THE MONTH D.C.F. v. P.E., --- So. 3d ---, 2009 Fla. LEXIS 1124, 2009 WL 2045403, 34 Fla. L. Weekly S449 (Fla. 2009) DCF filed a petition to terminate a mother's parental rights.  The mother appeared at the advisory hearing, was appointed counsel, and was told the date, time and location of the adjudicatory hearing.  The Mother signed a "Notice to Appear" containing language that her failure to appear at the adjudicatory hearing would constitute her consent to the termination of her parental rights.  The Mother failed to appear at the adjudicatory hearing, and the Court ruled that her absence constituted consent to the termination of her parental rights.  At a subsequent permanency hearing, the trial court entered an order terminating the mother's parental rights. The Mother appealed to the Second DCA alleging that despite her consent by non-appearance, the trial court should have required DCF to prove the alleged grounds for termination.  The Second DCA likened the mother's non-appearance as being the legal equivalent of a voluntary surrender.  It noted that its decision on this point conflicted with decisions from the Third DCA (SS v. DCF, 976 So. 2d 41 (Fla. 3d DCA 2008); and RH v. DCF, 860 So. 2d 986 (Fla. 3d DCA 2003)), and the Fifth DCA (DCF v. AS, 927 So. 2d 41 (Fla. 5th DCA 2006)), which require DCF to put on independent evidence supporting termination.  Curiously, the Second DCA still reversed the termination of parental rights, stating that the trial court erred in terminating the mother's parental rights without considering whether termination was in the "manifest best interests" of the child. In an opinion issued July 16, 2009, the Florida Supreme Court looked first to the plain language of the statute (section 39.801(3)(d), Fla. Stat.), stating, The Legislature has unequivocally provided that the parent's failure to personally appear evidences a parent's consent to the termination of his or her parental rights. The trial court's entry of the consent for the parent essentially constitutes entry of a default, i.e., a consent to the allegations in the petition and termination of parental rights. The Court then disapproved the Second DCA's reasoning (a consent by non-appearance is not a separate ground for termination) but agreed with its conclusion; namely, that DCF was not required to put on any additional evidence to support termination.  The Court stated, we hold that where an order has been properly entered determining that a parent's failure to appear constitutes consent pursuant to section 39.801(3)(d), the parent may not challenge the basis for the termination of parental rights. . . .  A parent who has consented cannot thereafter be heard to object. With the finding that the mother constructively consented to termination and with no objection being made to the termination by any other party, no purpose would have been served by requiring the Department to present evidence regarding the statutory grounds for termination. Disapproving the conflicting cases from the Third and Fifth DCAs, the Court then quashed the Second DCA's reversal and remanded for entry of an order affirming the trial court. Access opinion here. JUST FOR LAUGHS! I'm sure most of you have heard by now of the young couple, Jill and Kevin, whose unique wedding processional became a viral video on YouTube and led to an appearance on the Today Show. What you may not know is that, sadly, it appears the honeymoon is over and the battle lines have been drawn. Backwater Cases We are fresh out of Backwater Cases.  We need your submissions.  If you have an interesting "backwater case," send it, along with a brief summary of how the case helped you, and we'll publish it in a future edition of FAMSEG.  Send your contributions to j.a.moring@gmail.com Closing Thoughts There's Something For Everyone; The Choice is Yours Don't forget our upcoming various Section committee meetings on Wednesday, September 9, 2009, at the Tampa Airport Marriott, followed by the Executive Council meeting on Thursday, September 10, 2009.  A schedule of the various committee meeting times and locales can be found here.   It doesn't matter if you are not an existing committee member.  Each committee has various sub-committees on which you can participate.  There is never a shortage of work to be done, and we are ever in need of new and eager minds and bodies.  There is sure to be something that tickles your fancy, so give Section participation a try.  You won't regret it!  See you next month.