|
Come Sail Away
Cert. Review
February 5-6, 2010
Disney Yacht & Beach Club
|
|
|
|
The 2010 Marital and Family Law Review Course is fast
approaching. It will take place on February 5 and 6, 2010 at
the Disney Yacht and Beach Club. Download the course brochure or register online through the
AAML/Florida Chapter's website.
Even though we're at a new, larger location this year,
the seminar is expected to sell out, so sign up today!
Call Disney direct for room reservations: (407) 934-3372.
(Group rate of $209 per night, good from 2/03 through 2/07).
Also, Section Committee meetings will take place all day on Thursday,
2/04. Check the section website for more info.
|
|
Just for Laughs:
Divorce and the Holidays
|
|
A man in Chicago calls his son in New York the day
before Christmas and says, 'I hate to ruin Christmas this year, but I
have to tell you that your mother and I are divorcing; forty-five
years of misery is enough.'
'Pop, what are you talking about?' the son screams. 'We can't stand
the sight of each other any longer,' the father says. 'We're sick of
each other, and I'm sick of talking about this, so you call your
sister in Atlanta and tell her.'
Frantic, the son calls his sister, who explodes on the phone. 'Like
hell they're getting divorced,' she shouts, 'I'll take care of this.'
She calls Chicago immediately, and screams at her father, 'You are
NOT getting divorced. Don't do a single thing until I get there. I'm
calling my brother back and we'll both be there tomorrow. Until then,
don't do a thing, DO YOU HEAR ME?' and hangs up.
The old man hangs up the phone, turns to his wife, and says,
"It's set, the kids are coming for Christmas and they're paying
their own way."
------------------------------
From a weblog, whose author found his divorce
mediation set for December 27:
"Merry Christmas to all and to all a good fight."
------------------------------
|
|
CLE Opportunities
|
January 20, 2010
Telephonic Seminar (Course # 0920)
Why Networking & Time Management Are Critical to the Family Law
Attorney
February 10, 2010
Telephonic Seminar
(Course #0991)
Usual Assets For Distribution
March 10, 2010
Telephonic Seminar (Course #0997)
Ask an Expert about General Magistrates
Speaker: G.M. Diane Kirigin
March 19, 2010
LIVE Seminar
(Course # 1001)
Support Issues
Location: Tampa Airport Marriott
April 14, 2010
Telephonic Seminar
Ask An Expert About Guardian Ad Litems
April 2010
Family Law Spring Retreat
Location and Date: TBD
May 12, 2010
Telephonic Seminar
Ask an Expert
June 9, 2010
Telephonic Seminar
Ask an Expert About Social Security & QDRO Issues
|
|
Wanted: Your Submissions
|
|
|
Have
you just finished a case or appeal where you had to become
well-versed in a particular family-law issue? Well, how about
sharing your genius with the rest of us?!
We are accepting submissions for upcoming issues of The Florida Bar
Journal, The Family Law Commentator, and even FAMSEG.
The Journal
To be considered for publication in The Florida Bar Journal, the
article should be scholarly and relate in some manner
to family law. It should be twelve to fifteen pages
in length, complete with endnotes. Send your submissions to Laura Davis
Smith.
The Commentator
Commentator articles are theme-specific. Upcoming theme issues
include:
Winter '09 -- Discovery and Commercial Issues
Spring '10 -- Non-traditional Families
Summer '10 -- Children's Issues
Further on will be issues related to Tax Issues, Hot Tips, Alimony,
and Agreements.
Send your Commentator submissions to Ingrid A. Keller.
FAMSEG
Short, sweet, and topical are the watchwords for FAMSEG submissions.
A few hundred words at most.
We also accept submissions for "backwater" cases (those
cases that you don't often hear cited, but that have proven helpful
for you in a case -- send cite and how it helped).
Send all FAMSEG submissions to yours truly.
|
|
|
|
|
Dear
Jack,
It's that time of year again: the season of the
Emergency Holiday Time-Sharing Hearing.
Because of what we see every day in our practices, and because of the
overall climate of cynicism that pervades our society, it's easy to
unleash our Inner Scrooges.
Resist that temptation! Reflect soberly upon the year as it
swiftly draws to a close. Doing so, it becomes clear that we
are faced with a choice as a new year dawns.
We can either rest on our proverbial laurels, content that our
efforts thus far will suffice.
Or
We can strive to do better: for ourselves, our families, our
profession, our communities, our society, our world.
Real change most often occurs only intermittently.
Resolve to become an instrument of change. There are myriad
opportunities all around us. Do. Something. Good. Happy
Holidays!
|
|
CFO
Sets 2010 Judgment Interest Rate 
Florida's Chief Financial Officer, Alex Sink,
announced that, beginning January 1, 2010, the interest rate for
judgments and decrees, pursuant to sec. 55.03, Florida Statutes,
shall be six percent (6%), down from the 2009 rate (8%). It's
easy to forget what the judgment rates were for years past, but the
CFO's website has a listing of historical rates from 1995 forward
(from 1981 through 1994, the rate was 12%), including per
diems. You can find the webpage here. Don't forget to bookmark it in your
browser o' choice.
|
|
Recent
Cases of Interest
First
DCA
Welch v. Welch
November 30, 2009
The August edition of FAMSEG discussed this
case. Since then, the First DCA has withdrawn the original
opinion and issued a "clarifying" opinion.
23-year marriage; H earned $140K and W earned $85K. In lieu of
permanent alimony, trial court awarded W nominal alimony of $1.00 per
year. W appealed, citing Fla. R. Civ. P. 1.530(e), and arguing
that there was insufficient evidence to support trial court's finding
that she earned $85K. Affirming the trial court, the First DCA
noted that its standard of review was "abuse of
discretion." It looked to the statutory definition of
income, looked at the evidence before the trial court (including W's
2007 income, a forensic accountant's testimony, evidence of a COLA
increase, etc.) and found that there was substantial evidence to
support trial court's findings. W's objections to absence of
"detailed findings to explain its precise calculations of
income" not properly preserved as no rehearing sought prior to
the appeal.
The case also contains a good discussion of how to properly plead a
request for appellate attorney's fees. Access it here.
Second DCA
G.W. v. Rushing (Clerk of Court)
November 25, 2009
In a paternity action, G.W. filed a timely notice of
appeal of an order entered in late September 2008. A judge in
the lower court, however, entered an order in November 2008 directing
the clerk to remove the notice of appeal from the court file since
G.W. had been found to be a vexatious litigant some two years earlier
(the clerk's docket entries ran to some 35 pages). G.W. later
filed with the Second DCA a verified motion for belated appeal.
Treating the motion as a petition for writ of mandamus, the Second
DCA denied the same as moot (after the clerk belatedly located the
notice of appeal, certified it and transmitted it to the appellate
court). The Second DCA found that the clerk's office had failed
to perform its ministerial duty by not transmitting the notice of
appeal, and that the lower court's order directing the removal of the
order from the court file was improper.
Interestingly, the Second DCA sidestepped one important issue,
although it made passing mention of it in a footnote. Section
68.093, Florida Statutes, is the Florida Vexatious Litigant
Law. It specifically does NOT apply to
"actions concerning family law matters governed by the Florida
Family Law Rules of Procedure . . .
." Access opinion here.
Other cases that touch on the issue of vexatious litigation in the
family law arena include McGrath v. Caron, 8 So. 3d 1253 (Fla.
4th DCA 2009), and Sibley v. Sibley, 885 So. 2d 980 (Fla. 3rd
DCA 2004).
Third DCA
L.M. v. In re the Matter of the Adoption of J.A.M.L.
December 8, 2009
At an adoption hearing for a 15-year-old non-citizen
who was only days away from his 16th birthday (at which time he would
become ineligible to seek permanent residency status as a result of
the adoption), the trial court denied the adoptive parents' petition,
finding that the birth mother's consent (signed in a foreign country)
lacked an acknowledgment signed and sealed by a U.S. consular
official. Adoptive parents sought certiorari relief, which was
granted. The dispositive statutory provision in this case is
section 92.50(3), Florida Statutes, which authorizes a
consular official to acknowledge an affidavit, but does not require
that the same be "signed and sealed." Trial court had
relied on some [perhaps imprecise] language in a case from earlier
this year that dealt with the difference between a declaration and an
affidavit. Access opinion here.
Fourth DCA
Worrell v. Worrell
November 25, 2009
FH was ordered to pay child support of $500 per month,
plus an additional $100 toward an arrearage. After an
unsuccessful appeal, FH sought relief pursuant to Fla. Fam. L.R.P.
12.540, claiming that FW had filed a fraudulent financial affidavit,
and that the hearing officer who presided over the child support hearing
lacked the authority to rule on this issue. Lower court denied
the FH's motion. The Fourth DCA affirmed.
Fla. Fam. L.R.P. 12.491(b) provides that child support enforcement
hearing officers may be appointed to hear child support
establishment, modification and enforcement cases. FH argued
that because of his allegations of fraud, the case should not be
heard by the hearing officer. The Fourth District noted that
since FH was seeking relief from a judgment, he was clearly seeking a
modification of the underlying support award to FW contained in that
order. As to the issue of whether a fraud allegation is
sufficient to remove such a case from a hearing officer's
jurisdiction, the court found no reason why a hearing officer could
not readily rule on such issues, given the ability of the hearing
officer to "issue process, administer oaths, require the
production of documents, and conduct hearings for the purpose of
taking evidence."
FH claimed that case law was on his side and cited to Oliveri v. Oliveri,
541 So. 2d 174 (Fla. 4th DCA 1989), wherein the hearing officer heard
and determined temporary alimony and attorney's fees pendente lite.
The court, however, distinguished Oliveri ("Whereas fees were
clearly collateral to the issues which fell within the scope of
jurisdiction in Oliveri, in the instant case, an allegation of
fraud was the basis of the request for modification, a request for
which the rule provides jurisdiction to hearing
officers"). Access opinion here.
Fifth DCA
A.H. v. DCF
November 23, 2009
DCF sought to terminate Father's rights to his two
children, alleging abandonment. At the advisory hearing, F was
told that if he did not appear at the adjudicatory hearing, his
parental rights would likely be terminated. At a later status
conference, F, who lived in New York, appeared by telephone and
indicated that due to some recent health issues and lack of finances,
he could not personally appear at the upcoming adjudicatory
hearing. Court replied, "Okay. Well, your attorney will be
here." Court did not repeat the warning that was conveyed at the
advisory hearing that his failure to appear would result in
termination of his parental rights.
Come adjudicatory hearing time, F was not present, and DCF asked
Court to enter consent by default for his failure to appear.
F's counsel objected and brought to Court's attention its comments of
a few days earlier. Court entered a default, and counsel
immediately asked to withdraw as counsel, and that too was
granted. The Court then proceeded to terminate F's parental
rights.
The Fifth DCA reversed, finding that the lower court had failed to
comply with sec. 39.801(3)(d), Fla. Stat., in that the court
had failed to properly instruct F at the subsequent status conference
that his failure to personally appear would constitute a consent to
the termination of his parental rights. Further, even had the
court complied, it was an abuse of discretion to have entered the
default given the Court's intimation that F's attorney's presence at
the adjudicatory hearing would suffice. The Fifth also faulted
F's counsel for his "half-hearted" objection and desire to
be relieved as counsel "at the first available
opportunity. Access opinion here.
|
|
|
|
Well, that's all for this month. Have a
wonderful holiday season!!
I'll leave you with a toast I heard years ago: "May the best of
this year be the worst of the year to come!"
Jack Moring
Editor, FAMSEG
|
|
|
