Another fairly slow week, so I’ve again added what I hope are interesting cases going on in the country regarding Family law issues. This week, most notable is the Supreme Court’s Opinion filed December 6, 2012 37 FLW 753a deleting the provision of Rule 12.740(f) allowing for a ten-day review period when counsel for any party was not present at a mediated agreement. The ADR Committee filed a petition proposing this amendment. The FLR Committee opposed the amendment on the grounds that the ten-day review period was beneficial to parties who may choose to proceed to mediation without an attorney for financial reasons, but still wanted to be afforded the right to have an attorney review the agreement. The FLR Committee also pointed out the differences between Family law cases and dependency cases that justified the difference in the rules. Therefore, after this amendment, if a party wishes to have a ten-day period to have the agreement reached reviewed by an attorney, they must be sure to have such language agreed upon in the body of the mediated agreement.
EQUITABLE DISTRIBUTION
In a case out of our 2d DCA in Bikowitz v. Bikowitz, 37 FLW D2707 The Husband received a large payment from his employer that coincided with the employer’s sale of assets to another company during the divorce. There was contrary evidence that included that the payment was for the husband to provide consulting services to the new company’s buyer. The employer’s general counsel testified that the payment was made to honor the spirit of the original employment agreement. The 2d DCA found that this latter evidence supported the conclusion that the employer’s primary purpose in making the payment was to compensate the Husband for his past service. The outcome hinged on the “primary purpose” of the payment. Past service=marital asset whereas future service does not. In a side issue the court reversed the trial court’s valuation of a loan where there was no evidence that it was paid back or that it would ever be paid back. The same held true for a $30K outstanding receivable account in the Husband’s law firm. Because there was no evidence these debts would ever be collected, the lower court erred in valuing them and giving the Wife 50%. The DCA remanded with directions to value those assets at zero. Therefore, if you want a receivable valued and divided you must present the court with competent, substantial evidence that the loans/receivables will be collectible. If you want to prevail on including a large payment from an employer for purposes of equitable distribution, there must be competent substantial evidence as to the amount of which the primary purpose was to compensate the party for work performed prior to the date of filing.
CHILD SUPPORT/ALIMONY
In another 2d DCA case-Hammesfahr v. Hammesfahr, FLW 37 D2717a , the Husband filed a supplemental petition for downward modification of both alimony and child support. The court found the reduced income to be voluntary and denied a reduction in alimony and child support. The DCA remanded on the child support issue only holding that even though the reduction of income was voluntary and did not support a reduction in alimony, the court erred in refusing to reduce child support where the oldest child had aged out. The case was remanded to recalculate guideline CS for one child only retroactive to date of filing.
DISQUALIFICATION OF COUNSEL
In a 5th DCA case Strawcutter v. Strawcutter, 37 FLW D2752a, The Wife’s counsel had sued the Husband in an unrelated civil suit. The husband sought to have the Wife’s counsel disqualified in the DOM action pleading that her counsel would use his mandatory disclosure docs to his disadvantage in the civil suit. The Court denied the request finding that any concerns about the Wife’s counsel using the Husband’s financial documents in the civil action should be addressed in that case and not the DOM marriage case. The holding was based on the lack of evidence to support that 1) the wife’s attorney had possessed privileged communications and 2) he failed to present any evidence that if the Wife’s counsel did have any privileged communications , that they gave the Wife an unfair advantage in the DOM proceeding. Without evidence proving these facts there were insufficient grounds to disqualify the Wife’s attorney.
OTHER INTERESTING CASES PENDING
Did anyone see the News-Press this Sunday? Page A9 Who’s your Mama, Often there isn’t an easy answer. This article outlined some very interesting cases. The US SC on Friday announced it will hear challenges to the Federal Defense of Marriage Act (DOMA) This is in response to the 9th circuit case I wrote about last week. They will also hear arguments on California’s Proposition 8 ban with opinions due in June. These opinions will likely decide whether same-sex married couples are entitled to the same federal benefits and protections as opposite-sex couples who are married and ultimately, whether a State can ban same-sex marriages. Even more interesting, The Michigan SC is considering whether children conceived through in vitro after a parent’s death are entitled to SS benefits. A Husband, knowing he was dying, had his sperm banked before undergoing chemotherapy. He died of cancer before the babies were conceived and born. The Mother applied for SS benefits which were denied. Not to be outdone, The Florida SC heard arguments recently in a case of a lesbian couple’s custody dispute. One woman donated her eggs, had them fertilized by donor sperm and implanted in her partner-the “birth mother” Nine years after the birth, the “birth mother” took off with the couple’s daughter. The trial Judge awarded custody under Florida law to the birth mother. The Appeals court overturned that decision and granted parental rights to both women. It’s now been appealed to the Fla. SC. We’ll await the outcome on this.
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