Matthew Lane & Associates, P.A.
Palm Beach Gardens, West Palm Beach And Wellington, Florida Offices 561-328-1095

February 2013 Archives

Relocation - Change of Parent's Residence in Florida

Relocation Rulings

Relocation is a change in the location of the principal residence of a parent from his principal place of residence at the time of the last order related to time-sharing, or at the time of filing the pending action to establish or modify time-sharing "Prior to October 1, 2009, 'relocation' was defined in terms of a change of the primary residence of the child. Beginning October 1, 2009, 'relocation' is defined as: 'a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing... Based on section 61.13001 (1)(e) and A. F., the mother is correct in arguing that if she had already moved to Louisiana prior to the father's filing of the petition to determine paternity or any order establishing or modifying time-sharing, then she is not subject to the relocation statute." Essex v. Davis. 

Child Support - Income of Parents in Florida

The income of the parents, not the income of the caregiver, is to be used when calculating child support "Thus, it is evident that the income of the parents-not the income of the caregiver-is to be used when calculating the child support guidelines under chapter 409." Dep't of Revenue o/b/o Roberson v. Chaney.

Child Support - Agreements between the parties in Florida

Child Support

A Court is not bound by an agreement between the parties concerning child support. "It is undisputed, and should be indisputable, that a trial court's responsibility to the child cannot be abdicated to any parent, any expert. That heavy responsibility mandates that a court is not bound by any agreement between parents, nor by the opinions of any experts or group of experts." Lane v. Lane, 599 So. 2d 218, 219 (Fla. 4th DCA \992); see Feliciano v. Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996) (confirming that a trial court is not bound by an agreement regarding child support, custody, and visitation where it determines that it is not in the best interests of the children). As noted by the reviewing court in Jones v. Jones, 674 So. 2d 770, 774 (Fla. 5th DCA 1996), the "best interests of the children are to govern the custody decision, regardless of any stipulation between the parties." Sparks v. Sparks. 

Child Custody Decisions & Visitation in Florida

A Court is not bound by an agreement between the parties nor by opinions of experts concerning time-sharing. "It is undisputed, and should be indisputable, that a trial court's responsibility to the child cannot be abdicated to any parent, any expert. That heavy responsibility mandates that a court is not bound by any agreement between parents, nor by the opinions of any experts or group of experts." Lane v. Lane, 599 So. 2d 218, 219 (Fla. 4th DCA \992); see Feliciano v. Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996) (confirming that a trial court is not bound by an agreement regarding child support, custody, and visitation where it determines that it is not in the best interests of the children). As noted by the reviewing court in Jones v. Jones, 674 So. 2d 770, 774 (Fla. 5th DCA 1996), the "best interests of the children are to govern the child custody decisions, regardless of any stipulation between the parties." Sparks v. Sparks.

Child Custody & Visitation - Marital Settlement Agreements inFlorida

The trial court may disregard the parent's agreed upon time-sharing agreement, if it is not in the best interests of the children. "Prior to entry of the final judgment, the former wife filed a motion to set aside the MSA and parenting plan, alleging that the MSA was invalid and unenforceable because...As to the parenting plan, the former wife alleged that it was no longer in the children's best interests to reside with the former husband...A court is not bound by an agreement of parents regarding child support, custody, or visitation. Higgins v. Higgins, 945 So. 2d 593, 596 (Fla. 2d DCA 2006). As our sister court stated: '[i]t is undisputed, and should be indisputable, that a trial court's responsibility to the child cannot be abdicated to any parent, any expert. That heavy responsibility mandates that a court is not bound by any agreement between parents, nor by the opinions of any expert or group of experts.' Lane v. Lane, 599 So. 2d 218, 219 (Fla. 4th DCA 1992); see Feliciano v. Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996) (confirming that trial court is not bound by agreement regarding child support, custody, and visitation where it determines that it is not in best interests of children). Instead, the trial court is required to 'determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child....' §61.13(2)(c), Fla. Stat. (2010); see Jones v. Jones, 674 So. 2d 770, 774 (Fla. 5th DCA 1996) (reiterating that 'best interests of the children are to govern the custody decision, regardless of any stipulation between the parties'). Le v. Nguyen, 37 Fla. L. Weekly D1604 (Fla. 5th DCA July 6, 2012)

Alimony Award - Imputation of Income in Florida

Alimony Award Income Factor

The amount of income a spouse may be able to earn is a factor the court should consider in determining an alimony award. "'As to the imputation of income to the wife, the amount of income a spouse may be able to earn is a factor the court should consider in determining an alimony award.'" Shrove v. Shrove. 

Alimony - Imputation of Subsidized Income in Florida

Can impute income to a spouse whose expenses are being paid by another. "The former husband also complains about the trial court's imputation of income to him. We find no error in the trial court's decision to impute income to the former husband because he was living rent-free in a house owned by his parents. But, for the reasons explained below, the trial court erred in how it applied that imputation of income to the facts of this case. Imputation of income to a spouse for purposes of determining support is appropriate when someone, such as an employer or parent, is paying or subsidizing some of that spouse's monthly living expenses. See, e.g., Posner v. Posner, 39 So. 3d 411,413-14 (Fla. 4th DCA 2010) (affirming trial court's decision to impute $ 1400 income to the father based on the rental value of the home owned by the parents, where they allowed him to live rent-free); Chapoteau v. Chapoteau, 659 So.2d 1381,1384 (Fla. 3dDCA 1995) (holding that husband's employer-provided residence was income)." George v. George.

Alimony - Enforcement of Alimony Obligation in Florida

An obligee has the burden of demonstrating that the obligor failed to comply with a court order, the burden of proof then shifts to the obligor to demonstrate that the obligor no longer has the ability to pay. "'In a civil contempt proceeding for failure to pay . . . alimony, the movant must show that a prior court order directed the party to pay the support or alimony, and that the party in default has failed to make the ordered payments. The burden of producing evidence then shifts to the defaulting party, who must dispel the presumption of ability to pay by demonstrating that, due to circumstances beyond his control which intervened since the time the order directing him to pay was entered, he no longer has the ability to meet his support obligations. The court must then evaluate the evidence to determine whether it is sufficient to justify a finding that the defaulting party has willfully violated the court order.' Bowen v. Bowen, 471 So. 2d 1274,1278-79 (Fla. 1985)." Jackson v. Jackson, 37 Fla. L. Weekly D1682 (Fla. 2nd DCA July 18, 2012).

Permanent Alimony - Standard of Living in Florida

Disparity in income alone does not justify an award of permanent periodic alimony. "This court has recognized that '[d]isparity in income alone does not justify an award of permanent periodic alimony' and that '[a]n award of permanent alimony is improper where the evidence does not reflect permanent inability on the part of the wife to become self-sustaining.' Rosecan v. Springer, 845 So. 2d 927, 929, 930 (Fla. 4th DCA 2003) (citation and internal quotation marks omitted)." Beasley v. Beasley

Alimony's Intent - Standard of Living in Florida

Alimony is not intended to fund the enjoyment of every luxury enjoyed before the divorce. "Her alleged needs included the purchase of clothing, a personal trainer, daily maid service, flowers, gifts, club dues and charges, vacations, beauty salon, and spa...Alimony is not intended 'to fund the enjoyment of every little luxury enjoyed before divorce.' Levine v. Levine, 954 So. 2d 741, 743 (Fla. 4th DCA 2007)." Beasley v. Beasley

Alimony - Standard of Review of Trial Court's Rulings in Florida

Trial Court's Decision on whether to award permanent alimony is subject to an abuse of discretion standard of review. "'A trial court's decision on whether to award permanent periodic alimony is subject to an abuse of discretion standard of review.' Hornyak v. Hornyak, 48 So. 3d 858, 861 (Fla. 4th DCA 2010); see Mondello v. Torres, 47 So. 3d 389, 396 (Fla. 4th DCA 2010) (noting that "the nature and amount of an award of alimony is a matter committed to the sound discretion of the trial court" (citation, internal quotation marks, and alteration omitted)); § 61.08(2), Fla. Stat. (2009). Beasley v. Beasley

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