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A durational alimony case was recently decided by the Florida Court of Appeal in a case captioned Rhoden v. Rhoden. In this case the husband filed a Petition for Dissolution of a thirty-five year marriage. The husband denied that wife required alimony, and denied that he was able to pay it. The Court stated that the wife had several illnesses, and probably would not have been employable if she had not worked for her husband. The Florida Statutes enable trial courts to award several different types of alimony. In awarding alimony, a court must first find that one party has a need for support and that the other party has the ability to pay. Once the court makes this initial determination, the Court is required to consider other factors set forth in the Florida Statutes. In this case, the trial court awarded the wife durational alimony.

The Florida Court of Appeal found that the parties’ marriage was a long term marriage. A long-term marriage is a marriage having a duration of 17 years or more. When there is a long-term marriage, there is a rebuttable presumption that permanent alimony is appropriate. In this case, the trial court awarded the wife durational alimony, instead of awarding her permanent alimony. Durational alimony supplies the recipient with support for a set period of time when there is not an ongoing need for support on a long-term basis. Durational alimony can be awarded when permanent alimony is not appropriate. In this case, the Florida Court of Appeal reversed the trial court’s ruling because the trial court did not make a finding that permanent periodic alimony was inappropriate, and because the former wife did had an ongoing need for support.

To speak with an alimony attorney in Wellington, Florida, contact the Lane Law Firm, P.A. at (561) 363-3400.

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A Modification of Child Custody and Visitation case was recently decided by the Florida Court of Appeal. In a case captioned Light v. Kirkland the mother appealed a judgment modifying her timesharing schedule with her child. The original divorce decree provided that the mother was to have timesharing with her child during the week, and the child was to spend three weekends per month with her father. The father filed a Supplemental Petition to Modify Timesharing. The trial court granted the father’s Supplemental Petition, and awarded the father timesharing during the week. This modification required the child to transfer to a new school.

The Florida Court of Appeal reversed the trial court’s decision. The Appellate Court pointed out that in order to modify custody and visitation, there must be a material, substantial, and unanticipated change of circumstances subsequent to the time that the divorce decree was entered.  Once the trial court finds that there has been a material, substantial, and unanticipated change of circumstances, the trial court must determine whether the proposed modification is in the child’s best interests.

The fact that parents are unable to effectively communicate, or have an acrimonious relationship is an insufficient in and of itself to grant a modification. However, where parents have an acrimonious relationship that causes a child’s school performance to deteriorate, this may constitute a material, substantial, and unanticipated change of circumstances that warrants a modification of timesharing.

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A Child Custody and Visitation case involving a child’s custody preference was recently decided by the Florida Court of Appeal. In a case captioned Talarico v. Talarico, the mother and father had two children. The parties divorced and negotiated parenting plans. Several years later, the father sought a modification of child custody and visitation, which the trial court granted. The Florida Court of Appeals reversed the trial court’s decision to grant this modification.

The Florida Court of Appeal stated that in order to grant a modification of child custody, the moving party must prove that a material, substantial and unanticipated change of circumstances occurred which warrants the modification. This change of circumstances must adversely affect the children’s welfare. One of the factors that the trial court is permitted to consider in reaching a custody decision is a child’s reasonable preference. In order to consider a child’s custody preference, the trial court must find that the child has sufficient experience, understanding and intelligence to express a preference. The Court of Appeal stated that trial courts ordinarily do not desire to have children testify in court against one of their parents. In the event that a trial court decides to permit such testimony, the preferred method to obtain such testimony is by an interview conducted by the trial judge outside of the presence of the parents. These interviews are either recorded (unless otherwise agreed to by the parties), or the judge provides a summary of the interviews.

In this case, the Florida Court of Appeal ruled that the absence of a recording or a summary of the children’s interviews with the trial court constituted a violation of the mother’s Due Process rights under the United States Constitution. Therefore the Florida Court of Appeal reversed the trial court’s determination and remanded the case back to the trial court for another hearing.

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A Modification of Alimony case involving a former husband’s retirement was recently decided by the Florida Court of Appeal in a case captioned Befanis v. Befanis. In this case, a physician filed a Supplemental Petition for Modification of Alimony. The parties were divorced in 2010. At the time of the dissolution of marriage, the former husband was a successful ophthalmologist and owned his own practice. Five years after the divorce was granted, the former husband filed a Supplemental Petition for Modification of Alimony based upon the fact that he sold his business, was working as a salaried employee, and sustained a substantial decrease in his income. In his Supplemental Petition, the former husband also stated that he was preparing to retire, as he was almost 65 years of age. The former husband and former wife signed an agreed final judgment that reduced the former husband’s alimony obligation.

Sixteen months later, the former husband filed a second Supplemental Petition for Modification seeking another reduction in his alimony. The basis for the former husband’s second Supplemental Petition was that his employment contract ended and he retired.

The Florida Court of Appeal ruled that a party may obtain an alimony modification when there is a change in the circumstances or the financial ability of the parties. A party seeking modification must prove three elements. First, there must be a substantial change in circumstances. Second, the change in circumstances must not have contemplated when the initial alimony obligation was decided. Third, the change in circumstances must be material, sufficient, permanent, and involuntary.

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A case involving unmarried parents was recently decided by the Florida Court of Appeals.  In a case captioned Booth v. Hicks, the Mother appealed a final judgment that was rendered against her by the trial court. In this judgment, the lower court awarded the Father sole custody and parental responsibility of the parties’ child. The parties’ child lived primarily with the Mother. The Father petitioned the court to establish a parenting plan that awarded the Mother timesharing during the week and the Father timesharing on weekends. The Mother provided the trial court with her own parenting plan in which she sought sole parental responsibility.

The trial court held a final hearing in this matter. The Mother failed to appear at the final hearing. The Father presented testimony and two of his relatives also testified. The trial court awarded the Father sole custody and sole parental responsibility based upon the fact that the Mother did not appear at the hearing. The Mother filed a motion for rehearing, which was denied by the trial court.

The Florida Court of Appeal reversed the trial court’s time-sharing decision. The Court ruled that a trial court may only make an award of custody and parental responsibility based upon the best interests of a child. The Court of Appeal went on to state that custody should not be denied to a parent as long that parent, while in the presence of the child, conducts herself or himself in a manner that will not adversely affect the child. The Court of Appeal pointed out that the complete denial of time-sharing is almost never proper. The Court ruled that the best interests of the child overrides a parent’s failure to appear at a hearing. A parties’ actions in a court proceeding do not override a child’s right to have his or her custody determination decided based on his or her best interests. A child may not be punished for a parent’s misconduct. Custody is based upon the child’s best interests, not upon one of the parent’s default.

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A Modification of Alimony case was recently decided by the Florida Court of Appeal in a case captioned Judy v. Judy. In this case the Former Husband sought modification of his alimony obligation. The amount of Former Wife’s alimony was previously agreed to in a Marital Settlement Agreement. The Former Husband and Former Wife were married for 26 years. The Former Husband was the primary wage earner, and the Former Wife stayed home to raise the parties’ two children. Prior to the Final Hearing, the parties entered into a Marital Settlement Agreement. The Marital Settlement Agreement stated that the Former Husband would pay 8 years of durational alimony to the Former Wife. The Marital Settlement Agreement also stated that the Former Husband’s involuntary loss of employment would be considered to be a substantial change of circumstances for purposes of modification of alimony. By the time that the Final Hearing took place, the Former Husband was involuntarily unemployed. The trial court enforced the Marital Settlement Agreement, however, it permitted the Former Husband to institute an action for modification of alimony. Former Husband brought an action for modification of alimony. However, Former Husband dismissed this claim when he found employment. Five years later, Former Husband again became unemployed and brought this action for modification. Although Former Husband regained employment, he pursued his claim for modification of alimony based upon the fact that his current income was less than it was at the time of the Final Hearing and because the Former Wife had not obtained employment subsequent to the entry of the Final Judgment.

A General Magistrate granted Former Husband’s Supplemental Petition for Modification of Alimony based upon imputation of minimum wage income to the Former Wife. The General Magistrate found that the Former Wife had made no attempt to obtain employment after the divorce, and found that it was therefore appropriate to impute income to her. The Trial Court adopted the General Magistrate’s recommendations.

The Florida Court of Appeal reversed the Trial Court’ ruling and held that it erred in imputing income to the Former Wife. The Florida Court of Appeal pointed out that in imputing income to a payor, the trial court is required to ascertain the payee’s occupational qualifications, their work history and the current job market in the area where the parties live. However, since the terms of the parties’ Marital Settlement Agreement: (i) did not require the Former Wife to obtain employment, (ii) stated that the terms of the alimony obligation were non-modifiable, and (iii) did not indicate that the parties intended to impute income to the Former Wife if she did not become employed, the Florida Court of Appeal refused to impute income to the Former Wife and denied the Former Husband’s Supplemental Petition for Modification of Alimony.

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As part of an alimony obligation, a payor may be required to purchase life insurance to secure the award. In a recently decided case captioned Sager v. Sager the former husband appealed the final judgment. He argued that the trial court erred in requiring him to purchase life insurance to secure his alimony obligation. Husband and wife were married in 1982, and the former husband filed for divorce in 2016. Former husband was a mortgage broker and former wife was a teacher. The parties lived in the State of New Jersey for a large part of their marriage. The parties moved to the State of Florida and bought two houses. They used one as the marital home and used the other as a rental property. The former husband was 72 years old, and was retired. The former wife was 66 years of age. She did not have a college degree and was an early childhood teacher. She was also a substitute teacher in the summer. The trial court required the former husband to purchase a $250,000 life insurance policy to secure his alimony obligation to the former wife. The former husband appealed from the judgment requiring him to purchase the life insurance policy.

To secure alimony, the Florida Court of Appeal stated that trial courts may require that life insurance be purchased to secure alimony obligations when the trial courts make specific findings of fact that: (i) insurance is available for the payor, (ii) the payor has the ability to pay its cost, and (iii) that special circumstances warrant its purchase. Special circumstances that warrant the requirement that an obligor purchase life insurance include where the payee would be left in dire economic straits if the payor died, or where the payee is elderly, disabled, or has limited employment skills and the payor’s death would cause the payee to be dependent upon the generosity or welfare of others.

To speak with a divorce attorney in Wellington, Florida, contact the Lane Law Firm, P.A.

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Modification of Child Custody and Visitation was recently discussed by the Florida Court of Appeal in a case captioned Ezra v. Ezra. In this case the father challenged the decision of the trial court granting the mother exclusive decision-making responsibility for the children’s medical and educational needs. In this case, the parents married in 2004. They had two children. They separated the day after their 6th wedding anniversary. The mother alleged abuse by the father during the course of the marriage, as well as extreme disciplinary conduct toward the children. In 2011, the lower court ratified an agreed parenting plan which granted the parties shared parental responsibility for the healthcare and education needs of the children.

Subsequent to the entry of the final judgment, the father’s financial situation deteriorated. The father’s child support payments diminished. The children were historically enrolled in a private religious school. Due to the diminution of the father’s income, the mother sought financial aid for the children. The father allegedly impeded the mother’s efforts to obtain financial aid for the children. Additionally, the father allegedly interfered with medical treatment for one of the children. The mother sought modification of parental responsibility. The trial court granted the mother’s request for unilateral decision-making authority for the children’s healthcare and educational needs.

The Florida Court of Appeal affirmed the trial court’s ruling and stated that the modification of custody and visitation and parental responsibility requires the showing of a material, substantial, and unanticipated change of circumstances that was not reasonably contemplated when the original judgment was entered. The children’s best interest is the Court’s primary consideration.

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Imputation for purposes of alimony was recently decided by the Florida Court of Appeal in a case captioned Cura v. Cura. In Cura v. Cura, the Husband filed an appeal challenging an order awarding temporary alimony and child support. After a seventeen year marriage, the husband and wife separated. When the parties separated they were living at the husband’s mother’s home in Palm Beach County, Florida. The wife obtained her own residence and filed for divorce. She sought an award of temporary alimony and child support. During the course of the marriage, the parties enjoyed a lavish lifestyle. Immediately before the filing for divorce, the parties sold a valuable piece of property. The husband then sold a second piece of property. Finally, the husband took out a large mortgage on a third piece of property. The husband also sold a number of investments.

At a hearing, the Husband was unable to locate the whereabouts of any of the revenues from the aforementioned transactions. The husband claimed that he had no access to funds and was unable to obtain employment. The wife alleged that the Husband continued to enjoy a lavish lifestyle. She also contended that the Husband received gifts from his mother and was voluntarily unemployed.

In making an award of alimony and child support, the Florida Court of Appeal ruled that a trial court may impute income to the husband.  Imputing income requires people who are able to earn an income to do so. Unless the payor is mentally or physically incapacitated, earnings are to be imputed to an underemployed or unemployed person if such underemployment or unemployment is voluntary. If there is not sufficient evidence to decide the amount to impute, the spouse is presumed to have the capacity to earn the amount that that spouse historically earned. The trial court is to consider the payor’s job prospects, qualifications, recent work history, and the prevailing level of earnings in the community. Additionally, the court is to consider relevant economic factors.

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In child custody and visitation cases, a parent’s request to the trial court to have the other parent psychologically evaluated requires a showing that: (i) the request for the evaluation is related to a matter that is in controversy, and (ii) that there is good cause for the examination.

In a recently decided case captioned Reno v. Reno, the Former Husband filed an Emergency Motion for Mental Examination and Supervised Timesharing pursuant to Florida Rule of Civil Procedure 1.360 and rule 12.360. The Florida Court of Appeal stated that the party requesting the examination bears the burden of proof. Seeking custody does not place the other party’s mental condition in controversy. The other party’s mental condition must directly involve a material element in the case. Allegations of mental illness must be verified by the parent seeking the evaluation, and must show that the parent is having emotional issues that could substantially impact upon his or her ability to parent a child.

The focus of the inquiry is not on good parenting or bad parenting. The focus is on deeper concern with the parent’s emotional health. Good cause is substantiated by proof that a parent has not met the needs of the children. The party requesting the evaluation must show that the alleged emotional illness places a child at risk of abandonment, abuse, or neglect. The requesting party must show that a parent’s emotional condition would jeopardize the children’s wellbeing.

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