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Family
Law Section of the Florida Bar
FAMSEG
October 2009
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Calling
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If you're interested in submitting an article for future
Florida Bar Journal articles or the Family Law Commentator, let
us know.
To be considered for publication in The Florida Bar
Journal, the article should be scholarly and relate in some
manner to family law (obviously). It should be twelve
to fifteen pages in length, complete with endnotes. Send your
submissions to Laura Davis
Smith.
Commentator articles are theme-specific. Upcoming theme issues
are:
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.
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Truth Is Stranger Than Fiction,
Part I
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Judge Orders Shared Custody
(From
AP News and myfoxphilly.com, 09/22/2009)
Salem, N.J. - For now, the $40,000 legal fight about
Dexter the dog (pictured above) is over, but one "parent"
isn't happy with a judge's custody decision. On Monday, a judge
in Salem, N.J. ordered a former couple to share custody of Dexter,
after the pair paid lawyers a ton of money in fees in what was seen
as a test case. Court Judge John Tomasello said Dexter must spend
equal time with Doreen Houseman and Eric Dare.
Dare told reporters he may appeal the decision.
Previously, a Superior Court Judge determined that the
Dexter was joint property and a suitable arrangement must now be
determined.
There were three options: one "parent" could
get full custody or a joint visitation agreement can be decided. Dare
and Houseman spent 13 years together but never married, and broke up
in 2006.
In March, an another court decided pets have a special
value beyond being basic property. Previously, courts found
that a dog or a cat was not a child, but rather a piece of property
like a table or a lamp that would be divided in divorce. The
latest ruling that could change the animals-as-property notion.
One legal expert interviewed by Fox 29 said the case may
set a precedent for courts to look past how much a pet cost, and
instead consider the subjective value to the ex-spouses when making a
determination.
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Dear Jack,
Welcome to the October edition of FAMSEG. There's
still time to sign up for the Fall Section Retreat, to be held at the
beautifully restored, historic Fontainebleau Hotel, Miami
Beach. See below for further details. More case law
summaries, a few head-scratching/humorous recent news posts, and a
shout-out for all you authors out there to submit something to one of
the Section's publications. Enjoy.
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Fall Section
Retreat -- October 22 -25, 2009
Fontainebleau, Miami Beach
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APPLY NOW
The Section's Fall Retreat has something for
everyone. The featured speaker will be nationally renowned
author and lecturer, Debbie Ford, whose newest work is
"Spiritual Divorce: Divorce as a Catalyst for an Extraordinary
Life." The program has been approved for one hour of
Ethics credit.
Other events include a poolside Welcome Reception, a
Section Dinner at La Cote Restaurant, overlooking the beautiful
Atlantic. And did I mention bowling? Yes,
bowling!!! On Friday, we'll gather at Lucky Strike Lanes in
South Beach for food, drink, billiards and BOWLING!!!
The best part is, you can sign up for as many or as few
of the events as you like. Be sure to click on the "Apply
Now" link above to download the brochure. See you next weekend!
P.S. Did I mention bowling?
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Truth is Stranger Than Fiction, Part II
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MALAYSIAN WOMAN, 107, FEARS HUBBY NO. 22 WILL LEAVE HER
(CNN)
-- Afraid that her husband will leave her for a younger woman, a
107-year-old Malaysian woman is looking to marry again -- for the
23rd time.
Wok Kundor has been happily married for four years to her husband, a
man 70 years her junior.
But since he left their village in northern Terengganu state for a
drug rehabilitation program in the capital, Kuala Lumpur, Wok has had
a gnawing feeling.
"She said that she has been feeling insecure lately and she
needs to find out whether he still loves her or not," said
R.S.N. Murali, a reporter for The Star.
"She is worried he might not come back after his program and
find himself a younger wife," Murali said.
If so, Wok has her eyes set on a 50-year-old man, but hopes it does
not come to that.
"I realize that I am an aged woman. I don't have the body nor am
I a young woman who can attract anyone," she told the newspaper.
"My intention to remarry is to fill my forlornness,"
particularly during the Muslim month of fasting, Ramadan, she said.
Malaysian media, which has previously reported on the woman, said Wok
has been married 22 times. That would make her marriages last an
average of four years.
Wok would not discuss past relationships, Murali said.
"Some of her better halves have passed away or have divorced,
but she doesn't want to talk about them or her children," he
said.
Wok and her current husband, Mohammed Boor Che Musa, hail from the
same village and met there.
Muhammad, 37, was quoted in an earlier report as saying the couple
fell for each other because it was "God's will."
He told The Star that he is still very much in love with his wife and
cannot dream of life with someone else.
But Wok wants to hear him say it, Murali said.
Soon, the centenarian plans to make the journey to Kuala Lumpur -- if
she can find a neighbor to drive her there.
(Ed: Not reported in the article was her divorce attorney's comment:
"I've always heard the 23rd time's the charm." Thanks
to Matt Capstraw for this submission).
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Case Law
Update
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The
following are selected cases of interest released over the past few
weeks. The link to each case will take you to the opinion (in
.pdf format) on the issuing court's website.
Chaney
v. Fife, September 10, 2009
A litany of
mistakes by the trial court mandated reversal in this paternity,
custody and support case. Trial court's calculations for each
party's federal tax liability not supported by the evidence.
Further, due to lack of evidence and lack of adequate findings, the
transfer of the dependency exemption was error, as was the trial
court's failure to apportion each parent's share of non-covered medical
expenses in accordance with their respective support obligations.
Finally, the fee award was reversed; the trial court failed to consider
the parties' financial circumstances and there was no evidence that the
court considered any factors to determine the reasonableness of the
fee. Access opinion here.
Second DCA
K.D. v. Gift of Life Adoptions, Inc., September
11, 2009
Baby born in 2005; no father named on birth certificate. 3 years
later M gave child to Gift of Life (GLA) for adoption and named
appellant as father. At time F in prison in Oklahoma, and he was
served there with a notice of the TPR petition and of an upcoming
hearing. F responded, saying he never knew about the child but
that he wanted to be involved with child upon his release from prison;
F also requested counsel. DNA test obtained; F wrote to court
again regarding his request for counsel. GLA sent an amended
notice to F. F appointed counsel, who filed claim of paternity
form, which Vital Statistics rejected given the pendency of the TPR
action (see section 63.054, Fla. Stat.). Trial
court ultimately granted summary judgment in favor of GLA and
terminated F's parental rights, determining that he failed to file
claim of paternity or pledge of commitment (see section
63.062(2), Fla. Stat.). Second DCA reversed. GLA
jumped gun on filing the petition for TPR. The statute clearly
requires that an unmarried biological father be provided with notice of
the intended adoption plan, and that plan must inform him of his
obligation to file a claim of paternity and comply with the
requirements of section 63.062(a) or (b) (depending on the age of the
child). Pursuant to Heart of Adoptions, Inc. v. J.A., 963
So. 2d 189 (Fla. 2007), the father has thirty days from his receipt of
the plan to comply. Inasmuch as GLA never served F with an
adoption plan, and never provided any notice prior to filing suit,
reversal warranted, so that F can comply. Case also talks about
sufficiency of the notice. Access opinionhere.
Guobaitis v. Sherrer, September
2, 2009
21-year
marriage; H was a physician with serious substance abuse issues; W was
a pharmacist. H was unable to practice medicine and was in an
in-patient rehab as of the end of the final hearing (he had earned
$250K the year before). W given 82% of marital assets in final
judgment, and ordered her responsible for 27% of the marital
debt. Trial court found W had a need of $3k per month in spousal
support, but ordered on $500 per month until H resumed practice of
medicine. Third DCA reversed the final judgment for lack of
findings supporting the unequal distribution of assets and liabilities
(W argued that H's addiction issues and an extra-marital fling was
sufficient to show waste/dissipation). Trial court was instructed
to make specific findings to support its decision ("On remand, the
trial court is free to consider the dissipation of marital funds to
purchase drugs or to fund the husband's extramarital affair in
determining the equitable distribution of the parties' assets.").
Trial court should also have considered a huge tax liability for 2005
(trial court evidently didn't consider it since the amount due was not
yet known, though H's accountant had testified it would be
approximately $142K). Trial court's award of alimony was
upheld. Access opinion here.
Ross
v. Ross, October 7, 2009
Six-year
marriage. H and his brother ran landscaping and nursery business
both before and during marriage. Each had key man insurance
policies for $500k. Brother owned his own policy and H was
beneficiary. After petition filed, brother died in accident, and
H received over $1 million as beneficiary. W
claimed insurance proceeds were marital and subject to
equitable distribution. Trail court agreed and included them in
the e.d. Fourth DCA reversed. H was a beneficiary of the
policy and, as such, he had no interest or right in the policy or its
proceeds. He possessed only an expectancy. Since the event
that transformed that expectancy into an interest occurred post-filing,
the asset is clearly non-marital. Case includes a good discussion
of the law on this issue. Access opinion here.
R.M.
v. D.C.F., September 18, 2009
In dependency cases, is there any such thing as any appealable
non-final order (as opposed to seeking review by cert)?
According to the Fifth DCA, there's a least one. Three years
after supervision was terminated, M moved for custody, alleging that
she was in substantial compliance with her case plan and that it was in
her children's best interests to be placed with her (they had been with
their maternal grandmother for approximately five years). After
evidentiary hearing, lower court denied M's motion, and she
appealed. Fifth DCA initially issued order to show cause why
appeal should not be dismissed as a non-appealable non-final order (due
to court's continued jurisdiction over child), and M asked that appeal
be treated as petition for cert. M's atty also moved to withdraw,
being of the opinion that the appeal was meritless (and following the
procedure established by the Florida Supreme Court in N.S.H. v.
D.C.F., 843 So 2d 898 (Fla. 2003). Upon further
consideration, Fifth DCA determined the order was appealable under Fla.
R. App. P. 9.130(a)(4). Reasoning that M's motion was akin to a
motion for modification of placement under Fla. R. Juv. P. 8.345(a), it
was expressly reviewable by appeal. The Fifth DCA then granted
M's atty's motion to withdraw and has instructed M to file her initial
brief within thirty days. Access opinion here.
Contrast this opinion with that of the First DCA a couple of days
earlier (September 16, 2009) in S.P. v. D.C.F., here.
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