Articles Posted in Divorce

In a divorce proceeding, if a trial court bifurcates the proceeding to dissolve the marriage but retains jurisdiction to determine property issues, the subsequent death of a party does not deprive the trial court of jurisdiction to determine the issues reserved. In Passamondi v. Passamondi, the Florida Court of Appeal recently stated: “Claudia Passamondi (the Former Wife) challenges the trial court’s order dismissing her claims for the determination of property issues in a bifurcated dissolution of marriage proceeding.

The dismissal followed the death of Anthony Passamondi (the Former Husband). Because the trial court erred in determining that it lacked jurisdiction because of the death of the Former Husband, we reverse and remand for further proceedings…The Former Husband and the Former Wife were married in 1988. In January 2006, the Former Husband filed a petition seeking the dissolution of the parties’ marriage. The Former Wife answered the petition and counter-petitioned for dissolution of the marriage and for other relief. When the Former Husband filed his petition, he was suffering from a terminal illness. For this reason, he filed a motion requesting a bifurcation of the proceedings. The trial court granted the motion. On May 24, 2006, the trial court entered a final judgment dissolving the parties’ marriage. In the final judgment, the trial court specifically “reserve[d] jurisdiction over this cause and each of the parties to enter such further Orders, Judgments, and Decrees as may be necessary at any time in the future to resolve all equitable distribution issues and any other issues which have been pled.” The Former Husband died on July 26, 2006…In a written order, the trial court memorialized its ruling, in pertinent part, as follows: H. That by virtue of the death of the Former Husband and the opening of a Probate Estate for him, the Probate Court was vested with exclusive control over the Former Husband’s assets and the Probate Court had exclusive jurisdiction to determine the proper manner of distribution of the Former Husband’s assets after payment of all creditors of the Estate of which the Former Wife was one…If a trial court bifurcates a proceeding for dissolution of marriage by entering a judgment dissolving the marriage but retaining jurisdiction to determine property issues, the subsequent death of a party does not deprive the trial court of jurisdiction to determine the issues reserved. See Fernandez v. Fernandez, 648 So. 2d 712, 714 (Fla. 1995). In this case, the trial court had entered a final judgment dissolving the parties’ marriage and retaining jurisdiction to determine all other issues before the death of the Former Husband. Therefore, the trial court incorrectly concluded that it did not have jurisdiction to hear and to determine the Former Wife’s claims.”

To speak with a North Palm divorce attorney, contact Matthew Lane & Associates, P.A. at (561) 651-7273.

In a divorce proceeding, notwithstanding the lack of reservation of jurisdiction to enforce a charging lien, the trial court retains jurisdiction to enforce a charging lien where the trial court reserves jurisdiction to award fees. In Card v. Card, 38 Fla. L. Weekly D2015, 2016 (Fla. 2d DCA September 20, 2013), the Florida Court of Appeal recently stated: “Counsel for the Former Wife also argues that the trial court erred by not reserving jurisdiction in the amended final judgment to address his timely filed charging lien.

There is no dispute that counsel filed the notice and claim of charging lien before the original final judgment was entered. Thus, counsel perfected his charging lien by providing timely notice. See Daniel Mones, P.A. v. Smith, 486 So. 2d 559,561 (Fla. 1986) (“In order to give timely notice of a charging lien an attorney should either file a notice of lien or otherwise pursue the lien in the original action.”); see also Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383, 1385 (Fla. 1983) (“[T]here are no requirements for perfecting a charging lien beyond timely notice.”); Brown v. Vt. Mut. Ins. Co, 614 So. 2d 574, 580 (Fla. 1st DCA 1993) (holding that to be “timely” the notice of a charging lien must be filed “before the lawsuit has been reduced to judgment”). Notwithstanding a lack of express reservation of jurisdiction over the charging lien, the trial court is not foreclosed from considering the charging lien in this action because the issue of attorney’s fees and costs has not been finalized and the trial court reserved jurisdiction for that purpose. See Baker & Hosteller, LLP v. Swearingen, 99S So. 2d 1158,1163 (Fla. 5th DCA 2008) (holding that the trial court had jurisdiction to consider a motion to perfect and enforce an attorney’s charging lien where the trial court reserved jurisdiction to determine entitlement and amount of attorney’s fees).”

To speak with a divorce lawyer in Wellington, Florida, contact Matthew Lane & Associates, P.A. at (561) 651-7273.

In a divorce proceeding, even if the record supports an award of attorney’s fees, the failure to include the necessary findings in the order constitutes reversible error. In Bradham v. Bradham, the Florida Court of Appeal recently stated: “Timothy Bradham, the former husband, appeals the trial court’s order modifying his alimony obligation and requiring him to pay attorney’s fees and costs of appellee, Susan E. Bradham, the former wife. We find no abuse of discretion in the modification of alimony.Galligar v. Galligar, 11 So. 3d 808, 811 (Fla. 1st DCA 2011). Because the trial court made no findings to support the fee and cost award, we reverse the order granting fees and costs and remand for further proceedings.

We apply the abuse of discretion standard to review a lower court’s award of attorney’s fees. Shelly L Hall, M.D., P.A. v. White, 97 So. 3d 907,909 (Fla. 1st DCA 2012). Florida law provides: ‘[A] court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals …An application for attorney’s fees, suit money, or costs, whether temporary or otherwise, shall not require corroborating expert testimony in order to support an award under this chapter. §61.16(1), Fla. Stat. (2012). Furthermore, in Norman v. Norman, 939 So. 2d 240, 241-42 (Fla. 1st DCA 2006), this court held that a trial court reversibly errs when it awards attorney’s fees without making the requisite findings as to the proper amount, as required by Fla. Patient’s Comp. Fund v. Rowe, All So. 2d 1145 (Fla. 1985). Even where the record supports awarding fees and costs, failure to include the necessary findings constitutes reversible error. Id. at 242; see also Ard v. Ard,765 So. 2d 106, 107 (Fla. 1st DCA 2000) (remand of attorney’s fee award required where the trial court made no findings as to the attorney’s hours expended, hourly rate, or reasonableness of the fee).”

To speak with a Palm Beach Gardens divorce lawyer, contact Matthew Lane & Associates, P.A. at (561) 651-7273.

In a divorce proceeding, an agreement to provide for a child’s college expenses includes an agreement to provide for room and board. In Weaver v. Corey the Florida Court of Appeal stated that: “The Former Wife and Former Husband entered into a marital settlement agreement…as part of the dissolution of their marriage….By the terms of the agreement, the parties contracted to use their best efforts to provide for the expenses of sending their children to private or parochial school, college, and graduate school.

Specifically, the agreement provided that ‘[b]oth parties agree that each will use their best efforts to provide funds’ and that ‘[t]he contribution of each parent shall be calculated on the basis of the ratio between their gross annual incomes as reported [i]n their most recent federal income tax return immediately preceding the academic year.’ The parties’ oldest child, James Dalton Weaver, graduated from high school in December 2008 and enrolled in college the next month. The Former Husband began to contribute to the cost of James’ college expenses. However, there came a time when the Former Husband did not pay the full amount of the college expenses as expected by his now adult son and the Former Wife, and they sued the Former Husband for breach of contract. The trial court found that the Former Husband had not used his best efforts in supplying the costs of his son’s college education and entered an order requiring the Former Husband to pay a total of $41,603 to the son and the Former Wife as the costs of the college education.

On appeal, the Former Husband argues that the trial court failed to take into account the Former Wife’s failure to exercise her best efforts to contribute funds, as is also required by the agreement. Specifically, the Former Husband maintains that the Former Wife was willfully underemployed causing her annual income to range from $300 to $8500. When compared to the Former Husband’s income, the ratio described in the marital settlement agreement required the Former Husband to pay the equivalent of 97.4% to 99.9% of the son’s college expenses. The Former Husband argues that the trial court’s failure to consider the Former Wife’s willful underemployment in considering whether she was exercising her best efforts was error. We disagree.

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