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

June 13, 2017 by  
Filed under Uncategorized

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.

Increase In Value Of Premarital Stock In Husband’s Employer Can Be Marital or Non-marital

February 17, 2016 by  
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In Witt-Bahls v. Bahls the Fourth District Court of Appeals for the State of Florida considered whether the increase on the value of stock purchased by the Husband prior to the marriage in his employer should be considered marital or premarital.  The Court ruled that the facts of the case before it did not warrant the appreciation in the value of the stock being considered a marital asset because the appreciation in the value of the stock was not due to the Husband’s active effort.

“Marital assets are subject to distribution between the formerly married parties. §61.075(1), Fla. Stat. (2015).  Marital assets include “[t]he enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.” Id. § 61.705(6)(a)1.b.

The enhanced value of stock from a company for which the owning spouse works can be considered a marital asset and be subject to equitable distribution. See, e.g., Pagano v. Pagano, 665 So. 2d 370, 372 (Fla. 4th DCA 1996). However, it can also be a nonmarital asset if marital effort or assets are not used in so enhancing its value. See, e.g., Oxley v. Oxley, 695 So. 2d 364, 367-68 (Fla. 4th DCA 1997). The question raised in this appeal is whether the husband exerted the sort of “effort” required to move the appreciation value from the nonmarital category to the marital one.

The details of our prior case law make the answer to that question quickly apparent. In Robbie v. Robbie, 654 So. 2d 616 (Fla. 4th DCA 1995), we held that the appreciation of stock owned by the general manager of the Miami Dolphins – a business enterprise run largely by the husband’s family-was a marital asset. Id. at 617.  Similarly, in Pagano, we held the same with regards to the appreciation of stock owned by the president and operations manager of a family wholesale plumbing supply business. Pagano, 665 So. 2d at 371-72. In Minton v. Minton, 698 So. 2d 936 (Fla. 4th DCA 1997), we again held that the appreciation of stock from a family-owned business for which the husband was chief operating officer of two subsidiaries and vice president of two others was a marital asset. Id. at 369-97.  The pattern here is clear.

The case at bar demonstrates neither of the key features in the cases described.  Kiewit is not a business enterprise owned or run by the husband’s family. Nor was the husband in a position of significant authority in the company. Although he had some supervisory responsibility, the most reasonable description of his position would seem to be “middle manager”.

As was the case in Oxley, we today avoid a holding that “would effectively make all spouses partners in the increased value of all nonmarital assets that does not result from passive appreciation.” Oxley, 695 So. 2d at 368. Instead, we hold that, because the wife failed to establish that the husband occupied a significant management role in Kiewit, the appreciation of the Kiewit stock was not due to active effort and is therefore not a marital asset.”

If you need to talk to an attorney about your divorce, equitable distribution, and what the law may consider marital or non-marital please contact us to arrange a consultation.

Alimony Award Upheld Despite Trial Court Not Having Included Required Alimony Findings In Judgment Because The Former Husband Failed to Provide A Trial Court Transcript

December 8, 2015 by  
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In Jericka v. Jericka, the Second District Court of Appeals for the State of Florida upheld an alimony award, despite the judgment entered not containing the required findings to support such an award because the former husband had not provided a transcript of the trial court proceedings for the appellate Court to review to determine if the error was harmless.

If you want to talk with one of our attorneys or lawyers to discuss your divorce, alimony, or an appeal please call us on (786)539-4935 to schedule a consultation.

The opinion states:

(KHOUZAM, Judge.) Donald Jericka (the Former Husband) appeals the final judgment of dissolution that awarded Linda Jericka (the Former Wife) permanent periodic alimony. Because the Former Husband failed to provide a transcript or statement of evidence, we affirm.

The parties were married in September 1977 and remained married for approximately thirty-six years. In March 2013, the Former Wife filed a petition for dissolution of marriage. The Former Husband was employed as an electrician and owned and managed his own business with several employees. Throughout the dissolution proceedings, the Former Husband filed five financial affidavits. Each subsequent affidavit showed diminishing income from his business. In the final affidavit, the Former Husband claimed $0 as his monthly income derived from his corporation, showing roughly a $3900 decrease from the initial affidavit.

Following an evidentiary hearing, the trial court entered a final judgment and ordered the Former Husband to pay the Former Wife $2000 a month for permanent periodic alimony. Based upon the Former Husband’s multiple income amendments to his financial affidavits, the trial court determined that the Former Husband was less credible than the Former Wife and that the Former Husband appeared to manage his business in a way to affect the alimony award. With these exceptions, the trial court did not make any other factual findings in the final judgment to support its ruling that the Former Husband pay permanent periodic alimony each month. The record contains neither a transcript nor a statement of evidence or proceedings as provided for by Florida Rule of Appellate Procedure 9.200(b)(4).

The Former Husband contends that the trial court erred in failing to make factual findings in support of its alimony award. Section 61.08, Florida Statutes (2012), requires a trial court to make specific factual determinations as to whether either party has an actual need for alimony and whether either party has the ability to pay alimony. See Crick v. Crick, 78 So. 3d 696, 698 (Fla. 2d DCA 2012). Failure to make these findings is reversible error. See Farley v. Farley, 800 So. 2d 710, 711 (Fla. 2d DCA 2001). We note that the order on appeal in this case is bereft of the requisite factual findings and, with the exception of the findings regarding the Former Husband’s financial affidavits, merely tracked the language found in section 61.08(2). See Melo v. Melo, 864 So. 2d 1268, 1269 (Fla. 3d DCA 2004). But we are compelled to affirm as the Former Husband has failed to provide a transcript or statement under rule 9.200(b)(4). This failure precludes this court from reviewing the factual or legal basis for the trial court’s decision. SeeKlette v. Klette, 785 So. 2d 562, 563 (Fla. 1st DCA 2001); see also Esaw v. Esaw, 965 So. 2d 1261, 1264 (Fla. 2d DCA 2007) (“The most salient impediment to meaningful review of the trial court’s decision is not the absence of findings, but the absence of a transcript.”). We recognize that in some cases the absence of a transcript does not preclude reversal where the error is apparent on the face of the judgment.See Hoirup v. Hoirup, 862 So. 2d 780, 782 (Fla. 2d DCA 2003). However, a harmless error review is required in alimony cases, and the lack of a transcript frustrates our ability to conduct such a review.Klette, 785 So. 2d at 563-64. That is, without the transcript or suitable substitute, we cannot evaluate the entire case as required for a harmless error analysis. Id. at 563. Accordingly, we affirm.

Affirmed. (ALTENBERND and SLEET, JJ., Concur.)

A Divorce Judgment Needs To Contain Specific Findings In Support Of Equitable Distribution

September 30, 2015 by  
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In Matteston v. Matteson, the First District Court of Appeals ruled that the Divorce Judgment before it did not contain sufficient findings to support the distribution of personal property, bank accounts, or tax refunds, and did not have attached the items that were meant to have been attached according to the Judgment to support the division of assets set forth in it.  A trial court needs to make specific findings in support of an equitable distribution award so that an appellate court can meaningfully review it.  Failure for a trial court to do so can constitute reversible error.

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

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

Court Should Not Have Made An Unequal Equitable Distribution Of Marital Assets Based On The Husband’s Superior Ability To Earn Income Without Considering Other Factors

September 4, 2015 by  
Filed under Uncategorized

 

 

In Kyriakou v. Kyriakou, the Second District Court of Appeals held that the trial court should not have made an unequal equitable distribution of marital assets based on the Husband’s superior ability to earn income alone and without considering the other factors listed in the statute as disparate earning capacity alone should not form the sole basis for an unequal equitable distribution.  

The Appellate Court also took issue with the lack of findings on the record to support the categorization and valuation of the parties assets and made clear that if a judgment is being based on the dissipation of marital assets there must be evidence of it and specific findings of misconduct.

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

 

Court Should Not Have Classified A Business Established During The Marriage As Non-Marital

September 4, 2015 by  
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In Niekamp v. Niekamp, the Second District Court of Appeals held that the Wife’s music studio business which was established during the marriage should not have been classified as a non-marital asset.  Instead, it should have been classified as a marital asset and valued for the purposes of equitable distribution excluding the goodwill due to the involvement of the Wife in the business.

For equitable distribution purposes in a divorce, assets and liabilities need to be classified as marital or non-marital, valued appropriately under the law based on evidence presented and divided accordingly.  It is important to understand the applicable law regarding classification and valuation and present the right evidence if the correct result is to be obtained.

If you need to talk to a lawyer or attorney about your divorce, the division of assets and liabilities, the classification of marital and non-marital property and its valuation under the law 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

There Needs To Be A Substantial Change In Circumstances For A Petition For Modification Of Time-Sharing To Be Granted

August 28, 2015 by  
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In Blevins v. Blevins, the 5th District Court of Appeals held that because substantial competent evidence of substantial change in circumstances was not presented the trial court abused its discretion by granting former wife’s modification petition.

The Former Wife had sought modification based on the distance between her residence and the child’s school.   The Court ruled that the distance between the Former Wife’s residence and a child’s school was not a basis for modification of time-sharing where the location of parties’ residences was known at the time of the final judgment, when the trial court selected the former husband’s residence as a child’s legal address and address for school designation purposes.  Absent a substantial change in circumstances the trial court should not have granted a petition for modification of time-sharing.

If you want to modify time-sharing after a judgement has been entered it is important to present the right evidence to the court for it to rule in your favor and for its decision to be upheld based upon the best interests of the child and there having been a substantial change in circumstances.

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

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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.