SMITH FAMILY CASE LAW REVIEW: Week of January 29, 2018:
Posted by Roy Smith on Feb 05th 2018B.F. v. Department of Revenue: Fla 4th DCA, January 31, 2018:
Trial court erred in terminating paternity based on abandonment as abandonment requires a showing that the lack of contribution to child’s care and maintenance and failure to establish and maintain a positive and substantial relationship was at a time when the parent was able to do so. The phrase “while being able” in Florida Statutes 39.01(1) excludes involuntary abandonment. Further, the only testimony regarding communication with the parent and the child revealed that, while it was limited due to incarceration, it was positive.
Bruce v. Bruce: Fla 5th DCA, February 2, 2018:
Trial court determined that Wife was in need of alimony and the Husband had ability to pay. However, the trial court erred in denying alimony based upon a finding that Wife had entered into a supportive relationship. While Florida Statutes 61.14(1)(b) only applies to modifications of support (not initial determinations) the factors in the statute can be taken into consideration as a framework to determine if there is a supportive relationship to be considered in determining initial alimomy. Here the trial court did not make findings regarding the nature and extent of the Wife’s relationship or how the relationship diminished her need permanently for alimony. Trial court also erred in awarding school designation to Father without consideration of the factors in section 61.13. In fact, the little evidence provided seemed to favor Mother.
Ispass v. Ispass: Fla. 5th DCA, February 2, 2018:
Trial court incorrectly determined that it did not have jurisdiction to modify durational alimony. While Wife waited until two months before the set time for expiration of durational alimony to file her petition, the petition was still timely. The fact that the Court did not have the opportunity to rule on this issue until after durational alimony had ended did not divest court of jurisdiction. Further, the trial court had the ability to consider extension of durational alimony (as long as it is not greater than length of marriage) if exceptional circumstances could be shown under Florida Statutes 61.087(7).
Velleff v. Velleff: Fla. 5th DCA, February 2, 2018:
Matter had to be remanded to trial court as parties’ premarital agreement selected Israeli law. While choice of law provisions can be voided if it would contravene Florida public policy, the trial court did not make such a determination and essentially applied Florida law due to convenience. Remanded to determine if choice of Israeli law would contravene Florida public policy.
Gal v. Gal: Fla. 5th DCA, February 2, 2018:
Marital settlement agreement provided that Husband “shall either pay the Wife the sum of $400,000.00 as lump sum alimony or start paying permanent periodic alimony of $4,000.00 per month.” Husband also had the option of making one or more $100,000.00 payments which would reduce his ongoing monthly obligation by $1,000.00 a month. Former Husband chose to make monthly payments. Once Former Husband had paid a total of $400,000.00 over a period of time he argued that he had fulfilled his “lump sum” alimony obligation. 5th DCA found that the agreement did not create lump sum alimony but, instead, permanent periodic alimony, and therefore Former Husband had not fulfilled his alimony obligation.
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