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Florida’s Fourth District Court Of Appeals Weighs In On Prenuptial Agreements And Interspousal Gifts

September 4, 2015 by  
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In Hooker v. Hooker, the Fourth District Court of Appeals held that where the Husband purchased two properties with funds that could be traced to his premarital assets, which were kept separate by the parties’ prenuptial agreement, and the prenuptial agreement provided that any appreciation of those assets would remain separate, the only way the Wife could claim an interest in either property was by interspousal gift.

The Court then considered whether an interspousal gift had been made in regard to either of the two properties.  With respect to the property that constituted the parties’ primary marital residence through the majority of marriage and was the  site of a business in which the Wife was extremely involved, none of the facts found by trial court evidenced a clear and unmistakable intention on part of Husband to make a gift.

With respect to a second home, the facts evidenced that there had been an interspousal gift so the Wife had an interest in that property.  The court held that there was intent, delivery or possession, and surrender of dominion and control.  The Husband bought the property in a location where the Wife wanted to live, told the Wife the home was for both of them, and sent the Wife a card for their wedding anniversary with a picture of the property.  The Wife purchased  furnishings and incidentals for the home from her separate funds.  Delivery was made at the time the Wife obtained keys to property to use as her summer home.  The Wife then had unfettered access to the home and made decisions on the care and maintenance of property. The Court also held that appropriate findings had been made under the statutory factors for there to be an unequal equitable distribution of the parties interest in the property.

If you need to talk to a lawyer or attorney about a prenuptial agreement, your divorce, the division of assets and liabilities, the classification of marital and non-marital property, its valuation under the law, unequal equitable distribution, and presenting the legal arguments and evidence to the court, contact our office to arrange a consultation on (786)539-4935

Third District Court of Appeals Holds That A Settlement Agreement Splitting the Costs Of A Private School In A Specific Year Does Not Require The Child To Attend Private School In Subsequent Years

July 1, 2015 by  
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In the case of Dawn Herman v. Brad Herman, the Third District Court of Appeals held that despite it having been specified in a Marital Settlement Agreement that a child would attend private school for the 2015-2016 school year, with the parents to split the expense, where the parents were required to create an account and fund it with $150,000 for use towards the child’s education with any unused funds to be paid to the child at 25 years of age, the Marital Settlement Agreement did not require the child to attend private school after the specified school year as it did not specifically state it.  The Third District Court of appeals stated that the issue of whether the child would attend a private school after the 2015-2016 school year had not been resolved by the Marital Settlement Agreement.  (The parties did however acknowledge a scrivener’s error as to the years so that was adjusted by the Court.)

This is a stark reminder that a Marital Settlement Agreement needs to be drafted carefully and express exactly what is intended to avoid these kinds of issues coming up later in relation to any issues, especially  parenting issues and private schooling.  The parties to an agreement need to read them carefully and not presume that they are covered if what they want is not specifically stated in the agreement.  

The Florida Supreme Court has Reversed the Third District Court of Appeals Decision Against Amending a Complaint on the Death of a Smoker

June 19, 2013 by  
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The Florida Supreme Court has reversed the 3rd District Court of Appeals decision in Capone v. Philip Morris that held that a personal injury lawsuit could not be changed to a wrongful death lawsuit by the surviving spouse on the death of the smoker. This is important so that the death of the smoker does not mean that the old lawsuit is over and a new lawsuit has to be filed thereby putting the victim’s family back at square one.

Decision from 4th District Court of Appeals Confirms the Court Must Hold an Evidentiary Hearing to Consider Temporary Relocation

April 23, 2013 by  
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On April 10th the 4th DCA confirmed the provision in Fl.Stat. 61.13001 and held in Rivero v. Rivero that a court must hold an evidentiary hearing in order to consider a temporary relocation of a minor child pending a final hearing on a parent’s request to relocate. The appellate court determined that the trial court erred when it only considered the verified pleadings and argument of counsel when it permitted he mother to move with the minor child to North Carolina pending a final hearing. Preparing for an evidentiary hearing on a relocation issue is time-consuming. Parents who wish to relocate should contact counsel well in advance of the date they anticipate they will need to move.

Alimony Terminated Retroactively

August 10, 2017 by  
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Sometimes a change in circumstances warrants the reduction or termination of alimony.  In the case of Holli Poe Dennis v. Michael Dennis, the First District Court of Appeals for the State of Florida reversed a trial court decision that did not make the termination of alimony retroactive to the date that the Former Wife started receiving a portion of the Former Husband’s military retirement benefits.  The Court reasoned that alimony can be modified retroactively to the date of the filing of a petition for modification, and that where alimony is to be modified there is in fact a presumption that the modification should go to the date of the filing of the supplemental petition.   On the facts before it, the Court held that modification was warranted  retroactive to the date that the Wife started receiving the retirement payments.

If you need to talk to an attorney to discuss if alimony could be modified in your case based upon a substantial change in circumstances contact us for a consultation so we can evaluate your specific situation.

Relocation Judgment That Separated Siblings Reversed

July 6, 2017 by  
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In a relocation case brought pursuant to Florida Statute Section 61.13001, siblings should not be separated from one another unless there is a compelling reason to do so.

In Sickels v Sickels, the Fifth District Court of Appeals for the State of Florida reversed a post divorce relocation judgment that separated two 15 year old twins from their 9 year old sibling by allowing the Father to relocate with the twins to Virginia but providing for the 9 year old to stay  with the Mother in Florida.  The trial court did not make a finding that there was a compelling reason for the 9 year old not to relocate with the other siblings, or that there would be some detriment to the minor child if he relocated with the Father and twins to Virginia. The Appellate Court ruled that absent such findings a judgment separating the siblings could not stand and reversed the judgment sending it back to the trial court for it to either make findings of a compelling reason and detriment to the 9 year old child or not separate the siblings from one another.

If you have minor children and wish to relocate with them it is important that you talk with a lawyer with experience in relocation cases.  If you want to talk to one of our lawyers about your situation please contct our office to schedule a consultation.

To Successfully Oppose Relocation With a Child the Promise of a Change in Future Behavior is Not Enough

June 13, 2017 by  
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relocating with a child

 

 

In Solomon v. Solomon the Former Husband had a gambling problem and some mental health issues.  The burden of proof under the Florida Relocation Statute, Florida Statute 61.13001, was initially on the Former Wife to show that the relocation was supported by the statutory factors and in the best interests of the minor child. Once established the burden of proof would then fall on the Former Husband to establish that the proposed relocation is not in the best interests of the minor child.

The trial court considered it to be in the best interests of the minor child to be able to relocate with the Former Wife to Virginia , however, the trial court then decided that the Former Husband had overcome the presumption in favor of relocation being in the best interests of the child through a promise to temper his gambling and address his mental health issues in the future.

The Fourth District Court of Appeals for the State of Florida reversed the trial Court’s decision stating that a promise of future changes was not enough,  that a determination needed to have been made in the best interests of the child at the time of the final hearing, and that it must be supported by competent and substantial evidence.

If you need help from an attorney in a relocation case call us for a consultation on (786) 539-4935.

Grandparent Entitled to Makeup Time-Sharing (Visitation) Where Out Of State Time-Sharing Judgment Was Entitled to Full Faith and Credit

June 8, 2017 by  
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While the Florida Statutes do not provide for grandparents to have time-sharing like parents, an out of state Judgment domesticated in Florida is entitled to full faith and credit and can be enforced in Florida.   The Fifth District Court of Appeals for the State of Florida just reversed a trial court decision that did not provide for make up time-sharing for a grandparent based upon the argument that the Florida Statutes do not provide such a remedy to grandparents. The Fifth District Court of Appeals reversed reasoning that restricting the remedies available to a grandparent would be tantamount to not giving full faith and credit to the out of state judgment and that the remedy is available to enforce an out of state judgment. So just because Florida does not itself provide for grandparents to have time-sharing as if they were parents it does not mean that an out of state decision that they are entitled to such time-sharing shall not be given full faith and credit and enforced.

The Court stated:

“The Florida Supreme Court stated in no uncertain terms that the Colorado grandparent visitation order—which was entered in compliance with the Parental Kidnapping Prevention Act of 1980 (PKPA) —is by the express terms of the PKPA subject to the commands of the Full Faith and Credit Clause. Ledoux-Nottingham, 210 So. 3d at 1221. In order to give the Colorado order full faith and credit, the grandparents are entitled to enforce their grandparent visitation rights in Florida. The remedy provided in the Florida Statutes due to a party’s refusal to honor timesharing rights is make-up timesharing to the nonoffending party under section 61.13(4)(c). See § 61.13(4)(c), Fla. Stat. (2013) (stating a court shall award make-up timesharing where the refusal is “without proper cause”). In this sense, make-up visitation “square[s] the loss of past visitation rights.” Morales v. Morales, 915 So. 2d 247, 249 n.1 (Fla. 5th DCA 2005). Furthermore, section 61.526, titled “Duty to enforce,” authorizes the award of “any remedy” to enforce another state’s child custody determination. § 61.526, Fla. Stat. (2013). We construe these provisions together, and conclude that the grandparents are entitled to pursue the remedy of make-up visitation. As a result, we reverse and remand this matter to the trial court for determination of the issue of make-up visitation. The trial court must determine whether it would be in the children’s best interest for the grandparents to receive make-up visitation and if so, order timesharing in a manner fitting the best interests of the children. See Cheek v. Hesik, 73 So. 3d 340 (Fla. 1st DCA 2011).”

Stalking Injunction Reversed, Injunction for Protection Against Repeat Violence

June 6, 2017 by  
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There are different kinds of injunctions for protection against stalking available under Florida law.  You should consult an attorney regarding your specific circumstances.

Where a person seeks a stalking injunction for protection against repeat violence (Fla. Stat. 784.046(2)) it is necessary that there is more than one incident of violence or stalking for an injunction to be issued and be upheld on appeal.  One of the incidents must have occurred within 6 months of the petition for injunction.  Stalking itself requires repeat behavior, so following someone once does not qualify as stalking.

In the case of Kriebel v. Piedrahita the Fourth District Court of Appeals for the State of Florida revered an injunction that had been issued by the trial court for protection against stalking and repeat violence because there was only one incident of violence and one incident of following  the petitioner in the record. As the following of the petitioner had only occurred once the appellate court decided it did not constitute stalking which requires repeated following, harassing, or cyber stalking.

If you need legal advice concerning an injunction, to obtain one, or defend against one, contact our attorneys to schedule a consultation.

 

Alimony Reduced Where Recipient Wife Voluntarily Cut Expenses

April 21, 2017 by  
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Alimony can be reduced if the receiving party voluntarily reduces their expenses.  Courts have considered some voluntary changes in circumstances, such as retirement, as permitting modification of alimony depending upon the totality of the circumstances. Also, courts have reduced an alimony obligation where the substantial change in circumstances has been a reduction of a receiving spouse’s expenses.

 

In the case of Regan v. Regan, the Fourth District Court of Appeals for the State of Florida ruled that the trial court did not abuse its discretion by finding a voluntary change in circumstances had occurred and reducing alimony to the former wife from $ 9,000 a month, which was agreed to in a mediated settlement agreement, to $ 7,800 a month because the former wife significantly cut her expenses by selling the marital home, moving to a different state, and purchasing a smaller home.

 

If you have questions about a modification of an alimony obligation in your case contact us to schedule a consultation.

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Disclaimer: The Law Offices of Robert Hanreck, P.A. is based in Miami , Florida and serves clients throughout the State including Miami-Dade and Broward counties. We are licensed to practice law in the State of Florida. This website is intended for informational purposes only and is not meant to constitute legal advice, or solicit clients outside of the State of Florida.