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Modification Of Child Support And Contempt For Non-payment Of Child Support

October 13, 2015 by  
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Where there has been a substantial change in circumstances because of a change in the parties incomes or because of a change in court ordered time-sharing a party can petition the court for a modification of child support.  Where a petition for modification of child support is filed a modification of child support can be retroactive to the date of filing.

Where a parent has failed to pay child support the other parent can seek to have the parent who should have paid found in contempt of court for non-payment of child support.

In the case of Rosenblum v. Rosenblum, the First District Court of Appeals ruled that since a petition for modification of child support was pending before the trial court and it predated the motion for contempt for non-payment of child support the trial court was required to hear the petition for modification first or at the same time as the motion for contempt and had committed reversible error in hearing the motion for contempt before the modification action.  The Court of Appeals reasoned that the amount that should have been paid was not certain until the petition for modification had been heard so it was error to find the parent who had not paid in contempt until the amount owed had been determined.

If you need to talk to a lawyer or attorney about a modification of child support or enforcement of a child support obligation please  contact us at (786)539-4935 to schedule a consultation.

Absent An Emergency Situation Parents Should Be Given An Opportunity To Be Heard Before Modifying Time-Sharing (Visitation/Custody)

September 18, 2015 by  
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In Wolfson v. Wolfson, The Third District Court Of Appeals reversed an order temporarily modifying time-sharing where both parents were not given the opportunity to be heard. The Court held that the Mother needed to be given the opportunity to be heard.

The Court reasoned that under Florida law, unless a party can prove modification is required by a substantial and material change in circumstances, and that the child’s best interest will be promoted by such a modification, a trial court should not disturb the child custody determinations made final by a judgment of dissolution of marriage. Generally, both parties must be given notice and an opportunity to be heard on the matter prior to any modification, unless there is an actual, demonstrated emergency situation, such as where a child is threatened with physical harm or is about to be improperly removed from the state. Even in such instances, every reasonable effort should be made to ensure both parties have an opportunity to be heard. To conduct a proper inquiry into these issues, both parties must generally be given the opportunity for a full hearing where the parties and their witnesses are given an opportunity to testify.

If you need to talk to a lawyer or attorney about modification of time-sharing, custody, visitation,  or parental responsibility please contact our office to arrange a consultation on (786)539-4935

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

A Court Must Generally Leave Open An Avenue For A Parent To Resume Parenting And Time-Sharing With The Child(ren) Even If It Awards Sole Parental Responsibility And Denies Time-Sharing

September 3, 2015 by  
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In Niekamp v. Niekamp, the Second District Court of Appeals ruled that the trial court erred in determining that it was in children’s best interests to deny a father  contact with children  without setting forth a schedule or benchmarks for reestablishing father’s parenting of the children in the future.  Consistent with its prior rulings and the general concepts of Florida Family Law the Court held that while it is sometimes appropriate to restrict a parents contact and access with their child(ren) in a divorce case the restricted parent should be given a key or avenue to reconnect with the child in the future setting forth the specific steps that the parent must take so that a parent and any successor judge knows what is expected of the parent.

If you need to talk to a lawyer or attorney about  time-sharing, custody, visitation,  or parental responsibility please contact our office to arrange a consultation on (786)539-4935

A Trial Court May Not Adopt Or Ratify the Report And Recommendations Of A General Magistrate If The Magistrate Does Not File A Complete Record of the Evidence Before Them

August 18, 2015 by  
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Often times child support issues are referred by a circuit court judge to a hearing officer/general magistrate for determination.  Pursuant Florida Rule of Civil Procedure 1.490 a “magistrate” is responsible for ensuring that there is a full and complete record of a hearing before them.  

In the case of Garcia v. Garcia the Former Husband sought a downward modification of child support.  The evidence he presented included his own testimony and that of an accountant.  The Hearing Officer/General Magistrate ruled against the former husband stating that he had made a material and fraudulent omission in a financial affidavit and had not met his burden of showing a substantial change in circumstances to warrant a downward modification of child support.

The Former Husband took exceptions to the report and recommendations of the General Magistrate/Hearing Officer.  It was then discovered that the record from the hearings before the  General Magistrate/Hearing Officer was incomplete as it did not contain the testimony of the Former Husband or his accountant.  Regardless, the Circuit Court Judge denied the Exceptions to the Report and Recommendations of the Hearing Officer/General Magistrate and adopted the report.

The Third District Court of Appeals reversed the Circuit Court Judge’s denial of the exceptions and adoption of the Hearing Officer/General Magistrate’s report on the basis that the record was incomplete and remanded the case for further proceedings and a new hearing on the Former Husband’s Petition for a downward modification of child support.

It is important for a party seeking a modification of child support to present the right evidence to the court in support of the modification before a general magistrate/hearing officer.  It is also important to know the rules as to the exceptions and appeals process should the a trial court make the wrong decision based on the evidence and record before it.  

If you need to talk to a lawyer or attorney about a modification of child support, proceedings before a general magistrate or hearing officer, exceptions or an appeal you are welcome to contact our office to arrange a consultation on (786)539-4935

Appellate Court May Dismiss Appeal In Divorce Case Because The Appealing Party Had Not Complied With The Trial Court’s Orders

August 11, 2015 by  
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In a divorce case the appellant, Michel Whissell, appealed a non-final order finding him in contempt for the fourth time based upon failure to make court ordered support payments and comply with discovery.  Mr. Whissell claimed that there were deficiencies in the trial court’s order.  Mr. Whissell had been held in contempt and subject to incarceration pursuant to a writ of bodily attachment and then made statements to the trial court that he would comply with its orders but did still did not comply.  The Fourth District Court of Appeals ruled that it would dismiss the appeal unless  Mr. Whissell could demonstrate within 30 days that he was in substantial compliance with the orders of the trial court.

It is incumbent on a party to a divorce proceeding to try their best to comply with any trial court orders.  If not the party runs the risk of being found in contempt, subject to a writ of bodily attachment, incarceration and that an appeal of what they claims to be a deficient order will not even be considered by the appellate court whether the order was deficient or not.

In a divorce case it is important to get the advice you need from a lawyer who practices in the areas of divorce and family law in relation to issues like alimony, spousal support, child support, and discovery so mistakes are not made.  Failure to take the appropriate steps at the right time can significantly impact your case.  

If you need to talk to a lawyer or attorney about a divorce you are welcome to contact our office to arrange a consultation on (786)539-4935

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.