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Dear
Jack,
The
holidays are upon us along with the attendant hustle and
bustle. So no preliminary chit-chat this month. Just
enjoy the usual offerings, and if you have a comment or suggestion,
send them our way (j.a.moring@gmail.com).
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Feature
Article
IRS Form 8332, Now More Important Than Ever
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At the end of a long settlement conference, while reviewing the final
draft of the agreement, Joe asked his attorney about a clause in the
paragraph concerning child support.
"Hey, Mal, it says that I get the dependency exemption deduction
for each year as long as I have been current in my child support for
that year. Am I going to have to get my soon-to-be-ex to sign a
release to this exemption every year? We can barely speak to
each other as it is, and I know it's gonna be pulling eye teeth to
get it out of her each year."
Attorney Mal Praktice answers calmly, "Don't worry about it,
Joe. If your ex won't sign Form 8332, just attach a copy of the
final judgment and the agreement to your return and things will be
copacetic."
Q: Did Mal live up to his namesake with this advice?
A: Most assuredly, yes. Kindly direct your attention to IRS
Chief Counsel Advice Memorandum No. 200925041, issued on June 19,
2009. Pursuant to regulations effective for tax years after
July 2, 2008, attaching a copy of a decree that transfers the
exemption to the noncustodial parent as long as certain conditions are
met (such as the parent having been current in child support) is not
sufficient and the exemption will be disallowed. Form 8332 is
required or, alternatively, "a document that conforms to the
substance of Form 8332 and that has as its only purpose the release of
a claim to the exemption." For those whose judgments or
decrees predate July 2, 2008, the decree itself can suffice only if
it unconditionally allows the noncustodial parent to claim the
exemption. You can access the memorandum here.
It would seem the better practice that agreements should contain
specific language requiring the execution of Form 8332 for a given
year when the conditions for it have been met, together with
enforcement language, sanctions, fees, etc.
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 First
DCA - J.A.H. v. DCF, October 14, 2009
At a hearing in a dependency case, mother alleged that father was
stalking her through a third party and had texted this third party
that mother was going to be at court that day. Trial judge
demanded that father produce his cell phone and father refused and
was found in direct criminal contempt of court and sentenced to a
month in jail "based on his statements, demeanor, and behavior
during [the] hearing." In reversing the order of contempt,
the First DCA listed the six steps required by Fla. R. Crim. P. 3.830
in adjudicating a contempt of court. They are:
1. Direct criminal contempt may be punished summarily if court
saw/heard conduct committed in actual presence of court.
2. Judgment of guilt must include recital of facts on which
adjudication is based.
3. Defendant must be given opportunity to show cause why he should
not be adjudicated guilty.
4. Defendant must be given opportunity to present excusing/mitigating
circumstances.
5. Judgment must be signed by judge and entered of record.
6. Sentence must be pronounced in open court
First DCA found that trial court had not followed 2, 3 and 4.
You can access the opinion here. The Fifth DCA decided a similar case,
Jensen v. Jensen, on November 6, 2009. You can access that
opinion here.
Second DCA - Jacob v. Jacob, November 13, 2009
At a temporary hearing, H objected to court awarding W any relief as
she had not fully complied with mandatory financial disclosure (she
had filed a financial affidavit and a child support guidelines
worksheet). Court ordered W to provide same but, finding that
relief was warranted (as a "band-aid"), awarded W $3200 per
month in temporary support. On appeal, Second DCA found no
fault with court's decision to award support prior to full disclosure,
but determined that the amount awarded failed to take into account
monies H was already paying (i.e., home mortgage and household
utilities). In its reasoning, the Court explained,
"rule 12.285(a) allows the trial court discretion to modify any
part of rule 12.285 '[e]xcept for the provisions as to financial
affidavits and child support guidelines worksheets.' The record
suggests that the Wife did comply with these two
requirements." You can access the opinion here.
Third DCA - Gulbrandsen v. Gulbrandsen, October 14, 2009
During a 23-year marriage, H developed an invention. He and his
partner in the business filed a provisional patent application and
set up an LLC, spending tens of thousands of dollars and traveled
tens of thousands of miles to market the produce over the course of
several years. Come divorce time, H claimed his business in
connection with the invention was a "hobby." Trial
court found that business was about "50% developed" at time
of dissolution, thus 25% was marital and W entitled to 12.5%.
Final judgment gave W a 12.5% interest in "any and all
prospective future revenue streams that may be derived from the
prospective patent . . . [and] a 12.5% interest in [the LLC] and any
successor entities, successor corporations . . . ." On
appeal, Third DCA reversed the e.d. award related to the patent
application and future royalties, and the opinion states it's a
question of first impression on this issue in Florida. Third
DCA found that trial court rightly concluded the patent to be marital
and rightly rejected H's contention that it was a
"hobby." Trial court went too far with what the
structure of its award, when it gave W an interest in other patents
that may be developed as a result of labors by H post-divorce, and in
giving W an interest in "successor entities."
Further, a flat percentage award fails to take into account future
events that may dilute the parties' respective percentages of ownership.
Third DCA also reversed a lump-sum permanent periodic alimony award,
in favor of a nominal alimony award, and also reversed a separate
lump-sum alimony award of H's one-half interest in a
condominium. Overall, a most interesting case, and it can be
accessed here.
Fourth DCA - Wofford v. Wofford, November 4,
2009
11-year marriage. At time of final hearing H earning $9k per
month, net, W $0 (she was caretaker for the parties' 11- and
13-year-olds and was looking for work at Publix, where, if hired,
she'd make $10 per hour). W requested permanent periodic
alimony. Court awarded two years' bridge-the-gap at $1,200 per
month (plus child support of $1,908 per month), imputing an income to
her of $1,720 per month. W has anxiety disorder and H is
alcoholic. E.D. left them both upside-down, asset-wise.
Also, at final hearing, trial court found H in contempt for
non-payment of the children's medical expenses, the home mortgage,
and other household fees/expenses. Court sentenced H to 120
days but in lieu of incarceration offered H alternative of
quitclaiming his ½ interest in marital home to W (monthly mortgage
payment on home - $3,750, and home in foreclosure at time of final
hearing). Court denied either party fees.
On appeal, Fourth DCA, despite absence of transcript of lower court
proceedings, found that trial court abused its discretion in awarding
b-t-g alimony and should have awarded permanent or rehabilitative
alimony. Fourth also reversed the order denying the W's request
for fees. Finally, the Fourth reversed the contempt remedy and
instructed the trial court to determine the amount owing by H and to
enter a judgment thereon. You can access the opinion here.
Fifth DCA - L.M. v. DCF, October 15, 2009
At time of shelter proceeding, Mom and Dad had been living apart and
child had been residing primarily with Mom. Grounds for shelter
included Mom's abusing alcohol, using illegal drugs, allowing a
registered sexual predator to live in home with child present, and
that child witnessed domestic violence when Mom's boyfriend beat her
up. Dad was non-offending and child was placed in Dad's
temporary custody. Mom entered in substance abuse
treatment. At a hearing several months later, Mom entered a
consent to the petition for dependency and accepted a case plan, the
permanency goal of which was reunification (a dual goal was to
maintain and strengthen placement with Dad, but it was not a
permanency goal), and gave her some four months to complete the case
plan. At same hearing, because of what she had already done voluntarily,
Mom asked for reunification. Court accepted Mom's plea of
consent, accepted the case plan, adjudicated the child dependent and
denied Mom's motion for reunification, finding that it was in child's
best interests to stay with Dad. Then, finding that issues of
custody/visitation should best be handled by family court, it
deferred those issues to family court. Mom moved for rehearing
and DCF moved to terminate jurisdiction. After a second
hearing, court denied the motion for rehearing and terminated jurisdiction,
explaining that section 39.521(3)(b)(1) was the basis of the award of
sole custody to Dad.
On appeal, Fifth DCA reasoned that it was inconsistent for the trial
court to accept a case plan that called for reunification and then to
ignore it by closing the case with the child with Dad. "In
effect, the trial court's order both accepted and rejected the case
plan agreed to by the mother and DCF." Fifth DCA remanded
with instructions to the court to determine whether or not to accept
the proposed case plan. You can access the opinion here.
P.S.: Last month's case law update included a Second DCA opinion (K.D.
v. Gift of Life Adoptions) dealing with the necessity of strict
compliance with serving the notice of intended adoption plan.
For a look at how the First DCA has dealt with this issue recently,
see D.S. v. J.L., from August 10, 2009, which can be accessed here. Thanks to Ocala attorney, Anne
Raduns, who participated in this case, for the heads up.
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No, Dennis DeYoung has not rejoined Styx and they are not touring to
promote a re-release of "The Grand Illusion."
"Come Sail Away" is the theme of 2010's Marital and Family
Law Review Course, a/k/a Cert. Review.
The seminar takes place on February 5 and 6, 2010 at the Disney Yacht
and Beach Club. You can access the brochure here. Or, to make it even more convenient
for you, simply apply online through the AAML/Florida Chapter's
website, here.
This one is sure to be a sell-out, so sign up today!
And don't forget your room reservations. Call Disney at (407)
934-3372. A special rate of $209 per night, from Wednesday,
February 3 through Sunday, February 7, is available. So, what
are you waiting for? Register and reserve today. You'll
thank me (but, please, no "Domo arigato, Mr. Roboto!").
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Ky
Koch Needs
Your Assistance!
I
am writing to you as a result of your membership in the Florida Bar
Family Law Section. I need some assistance. I represent the
Husband. His fiancee is Russian and currently residing in the
Ukraine. Her first language is Russian. Ukraine is her
second language. She will be looking for a lawyer to represent
her in the negotiation and drafting of a Prenuptial Agreement.
She will need competent local counsel to assist her in the
negotiation, drafting,
and signing of a Prenuptial Agreement. It is critical that any
such counsel possess the following skills:
1. Fluency in Russian
2. Expertise in the area of Prenuptial Agreements; and
3. The ability to begin conversing with this lady immediately with an
eye toward a videotaped signing of this Agreement in my office in
February 2010.
It is anticipated that she will be here on a fiancee visa from
approximately
January 1, 2010 until March 31, 2010. My limited understanding of
this visa is that the wedding must occur within 90 days of her
arrival or the visa will expire and she will be forced to return to
the Ukraine. I will have a draft ready for you on November 1,
2009, along with the appropriate financial disclosure from my client.
It will be necessary that you be available for communication with his
fiancee prior to her arrival in the United States as it is
expected that she will want to begin this process as soon as
possible.
Should you possess the requisite expertise, please let me know
immediately.
Please contact my paralegal, Karen Wendt, at (727) 446-6248.
Thank you for your assistance in this regard.
Ky M. Koch
Koch, Smith & Hoffman, PA
200 N Garden Ave
Ste A
Clearwater, FL 33755
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Dead Parrot Sketch:
The Backstory
Argentina -- Angry wife Rosella DeGambos got a family insider to
testify in her divorce trial--a blabbermouth parrot named Bozo! The
star witness spilled all the family secrets in his two-hour
appearance before the court, and Mrs. DeGambos, 47, got her divorce.
"I knew he'd seen everything that my husband Carlos did when my
back was turned," Mrs. DeGambos said in an interview about her
bizarre divorce court ploy. "And I knew he had the vocabulary to
describe what he'd witnessed.
"My lawyer thought at first it was a ridiculous idea to call on
Bozo, but he doesn't know Bozo like I do."
Incredibly, the 14-year-old cockatoo answered questions and
identified photos during his testimony before Judge Manuel Agusto in
a civil court here. According to press accounts, the bird tended to
repeat himself but presented convincing proof that his master, a businessman,
had been unfaithful.
The stool-pigeon parrot described three "pretty dollies"
that Carlos, 52, had "tickled" while his wife was away. He
also identified the women in photographs, calling them by their
correct names.
"I used to think that Carlos was a faithful husband but Bozo let
me know about a year ago that something was up when I wasn't
home," Mrs. DeGambos said. "He was using new words, words
of love. And he began giggling in a high-pitched feminine voice. He
kept saying, "No Carlos, not here," and things like that. I
knew if the lawyers could get him to testify, there was plenty of
information they could get from him."
Sure enough, in sworn statements, the feathered witness squawked out
secret after secret. Shown one picture of a 23-year-old beautician
Carlos allegedly wooed in his home, the bird shrieked,
"Honeybun, I love you."
When Mrs. DeGambos' attorney asked the bird, "Who loves
Carlos?" the winged witness said, "Ruby loves Carlos, Ruby
loves her baby." Ruby is DeGambos' young and voluptuous
secretary.
At one point the bird's testimony even indicated that there were
problems between the DeGambos. When shown a picture of Mrs. DeGambos,
he said, "Pretty birdie, pretty birdie" and "Not
tonight, honey."
"It's an outrageous insult to my client that this bird-brained
witness should be called to testify
against him before the court," said Carlos DeGambos' lawyer,
Jorge Lines. Judge Agusto, who granted Mrs. DeGambos her divorce,
overruled the attorney's objections and let Bozo's testimony stand,
the first such ruling in the world, legal experts say.
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