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Family Law Section of the Florida Bar
Tallahassee, Florida 32399
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Dear Reader,
Welcome to September. It's time for the harvest,
the season is changing elsewhere, and Florida is no
different. We are in the beginning days of Summer 2.0!
We have for you this month a preview of the upcoming Section Fall
Retreat, more case law updates and a review of the recent Supreme
Court-approved changes to the Family Law Rules of Procedure and
Family Law Forms as a result of last year's parenting bill (chapter
2008-61, Laws of Florida, a/k/a CS/CS/SB 2532). We have a preview
of upcoming CLE programs, and finally, some light-hearted
children's musings about relationships, submitted by Robin Scher,
active Section member and immediate past editor of FAMSEG.
So, from all of us, enjoy!
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Article Headline
2009 Fall
Retreat
October 22-25, 2009
Fontainebleau Hotel
Miami Beach
 You
will not want to miss this year's Fall Retreat, to be held at the
beautifully restored Fontainebleau Hotel, with its 11 restaurants
and nightclubs and its 40,000 square-foot spa, located on 22 acres
of prime oceanfront real estate, only minutes from South
Beach. The Retreat theme is "Family Law for the 21st
Century; Lawyering for the Soul." This year's program
will feature renowned author/lecturer/life coach, Debbie Ford,
who has appeared on Oprah, Larry King Live!, Good
Morning America, and elsewhere. Her program will focus on
lawyering with empowerment and empathy, becoming a hero in your
client's eyes while making your job easier and growing your
practice, and managing your practice, staff and clients without
depleting your energy.
Included in the room rate is a deluxe ocean-view room, reduced
parking, complimentary in-room internet, and complimentary gym
access. For more information, see the accompanying brochure.
See you next month!!!
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New Rules (and Forms)
On September 3, the Florida Supreme Court issued its
opinion in SC08-1660, relating to proposed fast-track amendments to
the Florida Family Law Rules and Procedure and Family Law Forms in
response to the legislative amendments to chapter 61, Florida Statutes,
contained in Chapter 2008-61, Laws of Florida. Among the
more important changes are revisions to Form 12.930(b) (Standard
Family Law Interrogatories for Original or Enforcement Proceedings)
and Form 12.930(c) (Standard Family Law Interrogatories for Modification
Proceedings). For example, Interrogatory 6 (Miscellaneous) of
Form 12.930(b), now reads as follows:
6. MISCELLANEOUS:
a. If you
are claiming an unequal distribution of marital property or
enhancement or appreciation of nonmarital
property, state the amount claimed and all facts upon which you
rely in your claim.
b. If you
are claiming an asset or liability is nonmarital, list the asset or
liability and all facts upon which you rely in your claim.
c. If the
mental or physical condition of a spouse or child is an issue,
identify the person and state the name and address of all health
care providers involved in the treatment of that person for said
mental or physical condition.
d. Detail your proposed
parenting plan for the minor child(ren), including your proposed
time-sharing schedule. Alternatively, attach a copy of your
proposed parenting plan.
e. If you
are claiming that the other parent's time-sharing with the minor
child(ren) should be limited, supervised, or otherwise restricted,
or that you should have sole parental responsibility for the minor
child(ren), with or without time-sharing with the other parent, or
that you should have ultimate responsibility over specific aspects
of the child(ren)'s welfare or that these responsibilities should
be divided between you and the other parent, state your reasons and
all facts which you rely upon to support your claim.
The forms are effective as of the date of the opinion, which can be
accessed here.
If you use these forms, make sure you update them.
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Just For Laughs
KIDS' ANSWERS TO IMPORTANT QUESTIONS
HOW DO YOU DECIDE WHO TO MARRY?
"You got to find somebody who likes the same stuff. Like, if you
like sports, she should like it that you like sports, and she should
keep the chips and dip coming." -- Alan, age 10
"No person really decides before they grow up who they're going
to marry. God decides it all way before, and you get to find out
later who you're stuck with."
-- Kristen, age 10 (someone's future client)
WHAT IS THE RIGHT AGE TO GET MARRIED?
"Twenty-three is the best age because you know the person
FOREVER by then." -- Camille, age 10
HOW CAN A STRANGER TELL IF TWO PEOPLE ARE MARRIED?
"You might have to guess, based on whether they seem to be
yelling at the same kids." -- Derrick,
age 8
WHAT DO YOU THINK YOUR MOM AND DAD HAVE IN COMMON?
"Both don't want any more kids." -- Lori, age 8
WHAT DO MOST PEOPLE DO ON A DATE?
"Dates are for having fun, and people should use them to get to
know each other. Even boys have something to say if you listen long
enough."
-- Lynnette, age 8 (wise beyond her years)
"On the first date, they just tell each other lies and that
usually gets them interested enough to go for a second date."
-- Martin, age 10 (wise beyond his years)
WHAT WOULD YOU DO ON A FIRST DATE THAT WAS TURNING SOUR?
"I'd run home and play dead. The next day I would call all the
newspapers and make sure they wrote about me in all the dead
columns." -- Craig, age 9
WHEN IS IT OKAY TO KISS SOMEONE?
"When they're rich." -- Pam, age 7
"The law says you have to be eighteen, so I wouldn't want to
mess with that." -- Curt, age 7
"The rule goes like this: If you kiss someone, then you should
marry them and have kids with them... It's the right thing to
do." -- Howard, age 8
IS IT BETTER TO BE SINGLE OR MARRIED?
"It's better for girls to be single but not for boys. Boys need
someone to clean up after them." -- Anita, age 9 (all too
true)
HOW WOULD THE WORLD BE DIFFERENT IF PEOPLE DIDN'T GET MARRIED?
"There sure would be a lot of kids to explain, wouldn't
there?" -- Kelvin, age 8
AND THE NUMBER ONE FAVORITE ANSWER:
HOW WOULD YOU MAKE A MARRIAGE WORK?
"Tell your wife that she looks pretty, even if she looks like a truck."
-- Ricky, age 10 (he'll be married forever)
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09/17/2009
Equitable Distribution
Location: Hilton at
Ft. Lauderdale Airport
Course Brochure here
---------------------------------
10/14/2009
Telephonic Seminar:
Marketing and Law Office Management
----------------------------------
11/04/2009
Telephonic Seminar:
Case Law Update
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12/09/2009
Telephonic Seminar:
Attorney's Fees, Charging Liens and Provisions in Contracts
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01/13/2010
Telephonic Seminar
Avoiding Malpractice
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02/05-06/2010
Marital and Family Law Review Course
Location: Disney Yacht and Beach Club Resort
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02/10/2010
Telephonic Seminar
Usual Assets for Distribution
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03/10/2010
Telephonic Seminar
Ask an Expert About
General Magistrates
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03/19/2010
Support Issues
Tampa Airport Marriott
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04/14/2010
Telephonic Seminar
Ask an Expert About
Guardians ad Litem
---------------------------
AND MANY MORE (SEE THE SECTION WEBSITE FOR MORE INFORMATION)
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Case Law Update
First DCA
Fashingbauer v. Fashingbauer, August
28, 2009
H owned a property on American Beach prior to marriage. During
marriage (which lasted just over two years), H took out a $470,000
line of credit on beach property to purchase marital residence. W
testified she wasn't sure if it was a line of credit or a mortgage,
but that marital funds were used to pay it and taxes on both
properties. Trial court deemed the beach property to be
marital, finding that parties "serviced mortgages" on both
properties. First DCA reversed. Evidence did not support
trial court's findings. Further, payment of taxes on
non-marital property from marital funds does not transform it into a
marital asset. H also argued that trial court erred in applying
the Landay formula (429 So.2d 1197) in determining and
distributing value of another property. H argued that formula
set forth by 1st DCA in Stefanowitz (586 So.2d 460; i.e., the Gregg
formula (474 So.2d 262)). That issue affirmed as H did not show
how resulting valuation/distribution would have been different using
different formula. H had also requested that he be reimbursed
for some $33,000.00 in household expenses he incurred between
separation and final hearing. First DCA stated that trial
court not obligated to order reimbursement, it being a matter of
judicial discretion, and taking into account parties' relative
resources, ability of each to pay and whether expenses paid from
marital funds Equitable distribution reversed and
remanded. Access opinion here.
Second DCA
Pipitone v. Pipitone, August
28, 2009
MSA provided for non-modifiable lump sum alimony (part of which
($75,000.00) was for W's assuming sole responsibility for a marital
debt, and the other part ($100,000.00, the MSA was silent as to
whether it was for support or something else). MSA also stated
that "W may secure" alimony by placing lien against certain
non-real estate assets belonging to H. Post divorce, FH fell
behind, and FW sought to enforce MSA through motion to compel
payment, motion for contempt and for "other such relief as is
proper." Trial court said that FW's only remedy was to
pursue a lien. Second DCA reversed and remanded, stating that
the word "may" was non-exclusive and that the lien remedy
was not her only remedy. FH further argued that FW could not
seek to hold him in contempt given that part of the lump-sum alimony
was part of the equitable distribution scheme. Second DCA (and
FW) agreed as to the $75,000.00. As to the other $100,000.00,
the trial court on remand is to determine only that portion
characterized as support is enforceable by contempt. On remand,
the trial court is to determine if it is nature of support or is part
of the equitable distribution. The case includes a good
discussion of lump sum alimony and a good summary of the case law
giving guidance on how to tell if the payments are for support or for
property settlement. Access opinion here.
Third DCA
Pita v. Pita, September 2, 2009
MSA required FH to pay to FW $60,000.00 in lump sum alimony, and an
additional $575,000.00 for her interest in FH's commercial
property. MSA was contingent on FH obtaining new
financing on the commercial property. MSA provided that FH was
to "make a good faith effort" to obtain the financing
within 90 days, but the MSA did not specify the amount of the
financing that he was to obtain. FH evidently obtained approval
for a $500,000.00 loan but he refused the loan. FW moved to
enforce the MSA and FH argued that it was unenforceable as the intent
of the agreement was that he obtain financing for $700,000.00, which was
the full amount owed to FW. Trial court found the financing
clause to be ambiguous and allowed parol evidence to determine the
parties' intent. After hearing, trial court found FH did not
use good faith and that the amount was not specified because it was
contemplated that he had other cash assets to put with whatever
financing he obtained. On appeal, the Third DCA affirmed.
Access opinion here.
Fourth DCA
Mathers v. Brown, September 9,
2009
Four-year marriage; H's pre-marital stock portfolio increased
over $3.5 million in that time. Trial court excluded $788,000
from the enhanced value as they were capital contributions from
nonmarital sources. The other $2.8 million the court determined
to be marital, as H had "personally traded his
portfolio." H had argued that court should also exclude
any appreciation in value from market growth, citing to the S & P
500 Index as the appropriate benchmark (H's atty in fact argued that
the Fourth DCA's earlier case, Chapman v. Chapman, 866 So. 2d
118 (Fla. 4th DCA 2004) mandated the application of this
index). Trial court rejected that argument, reasoning that H's
portfolio included a lot of foreign stocks and foreign index funds
and very few S & P 500. But trial court then awarded $1.8
million of the stock to H and $1 million to W, citing numerous
reasons for the unequal distribution (W had lied to H about her age
prior to marriage, W's own separate portfolio had increased also and
was managed by outside company rather than by W personally, so H
doesn't get to share in it; short duration of marriage; and
others). Trial court also awarded W pre-judgment interest at
statutory rate until H paid her the $1 million. On appeal,
Fourth DCA affirmed, finding H failed to meet his burden to establish
what portion of the increase in value in the portfolio was due to
market conditions ("Because there was not testimony supporting
the use of the S & P 500 Index in this case, the trial court did
not err in refusing to rely upon the index). Fourth also
affirmed the interest award as being within trial court's discretion
and no abuse of that discretion having been shown. Access
opinion here.
Fifth DCA
B.T. v. D.C.F., August 14, 2009
Child adjudicated dependent based on finding that F had abandoned
him. F incarcerated since before birth of child and not
scheduled to be released until 2011 (child was five at time of
adjudicatory hearing). Fifth DCA upheld the adjudication of
dependency but held that finding of abandonment not supported by the
evidence. F was only witness at the hearing. He testified
he regularly received photos and updates about the child from family
members, and that his failure to pay child support was due solely to
his incarceration. Fifth DCA stated that DCF had presented no
evidence other than incarceration to support a finding of
abandonment. Incarceration alone was insufficient to support
finding of abandonment. "We do not suggest that [the
child] was not abandoned by F; merely that there was a failure of
proof of abandonment." Access opinion here.
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