When is a spouse entitled to exclusive use and possession of the marital residence?

 Under 61.075(1), Florida Statutes, the Court can award a spouse with majority timesharing  exclusive use and possession of a marital residence until the minor child reaches the age of majority or until the spouse remarries. The Court justifies this award as a way of avoiding further disruption to a minor child’s life. Florida case law suggests this award is the norm unless “special circumstances” exist to make it inequitable.. Special Circumstances include: relative financial positions of parties, duration of residence, other assets available, and earning capacity of the parties. To sustain the award, the parties must be able to maintain the home living separately and the non-occupying spouse must be financially able to forego the economic benefit of distributing the asset immediately. Some case law suggests a non-marital home can be subject to exclusive use and possession.

§ 61.075.  Equitable Distribution of Marital Assets and Liabilities (1) In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, or in a proceeding for disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets, the court shall set apart to each spouse that spouse’s nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including: (1)(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home. What’s the general rule for awarding exclusive use and possession of marital residence to a party? A trial court may award the primary residential [majority timesharing] parent exclusive use and possession of the marital residence until the youngest child reaches majority or the primary residential parent remarries, unless there are special circumstances. Martin v. Martin, 959 So.2d 803 (1st DCA 2007). What’s the rationale behind this type of award? What does this mean now that 50/50 timesharing is becoming the norm? The party wishing to remain in the marital home should request the relief first, but it is not clear based on the case law to date which have facts relating to a majority time-sharing parent. Therefore, it may be benfeicial to request majority timesharing (anything more than 50.50 if this relief is being requested and these cases and their progeny argued.

“[T]he breakup of their parents’ marriage is . . . a severe trauma to young children; this additional physical and psychological dislocation [from the family home] should not be imposed upon them unless there is a very good reason indeed for doing so.” Pino v. Pino, 418 So.2d 311, 312 (3d DCA 1982).
What special circumstances justify partition of the home rather than exclusive use and possession? The parties’ relative financial positions along with other considerations may constitute special circumstances. Martin. What relative financial positions deter exclusive use and possession? The non-occupying spouse’s financial position must be bad enough that he/she requires an immediate distribution of the home’s assets. So, if the parties are unable to maintain the home financially living separately, then the court should order partition. Example: In Marshall v. Marshall, the parties made similar incomes, had very little liquid assets, and had no children. Without distribution of the home, the non-occupying Husband would have been reduced from “modest economic status…to relative impoverishment.” Marshall v. Marshall, 953 So. 2d 23, 26 (5thDCA 2007). What other considerations justify partition? 1. Short duration of the parties [having] resided in the marital residence, 2.Lack of other significant marital assets, and 3.The large differential in relative earning power together equal special circumstances. See Martin. (i.e. the occupying spouse is much wealthier than the non-occupier). In Martin, the parties resided in the home for less than a year, the house had significant equity and was the main asset, and the wife [majority timesharing parent] made 2.5 times more income than the husband. Can the Court order exclusive use and possession of a nonmarital home? Probably. In Cabrera v. Cabrera, 484 So.2d 1338 (3rd DCA 1986), the Court reversed the trial court’s order requiring the former wife and child remove themselves from the nonmarital home.  The home was purchased prior to the marriage by the Husband and the parties had only lived there for two years. The Court looked to the relative financial positions of the parties in rationalizing this dispossession. Since the Husband made a lot more money than the unemployed wife, it stated: “[the Husband] is financially able to provide adequate housing for his child without inordinate sacrifice on his part.”  The Court asserted the principle that the award of exclusive possession of property is directly connected to the obligation to support. This outcome seems suspect if the home should never have been subject to equitable distribution in the first place. Can a Court award a non-occupying spouse a credit for the rental value of the home?  Yes. Example 1: Rental value during an injunction. Divorce court properly awarded a former husband credit for half of the marital home’s rental value for the period when the former wife had exclusive possession of it pursuant to a final judgment for protection of domestic violence issued under Fla. Stat. § 741.30(1)(c), as the domestic violence order did not preclude the divorce court from considering the home’s rental value. Wolf v. Wolf, 979 So. 2d 1123, (2nd DCA 2008). Example 2: Trial court erred in ruling that a former husband was not entitled to half of the rental value of a marital residence during a former wife’s exclusive occupancy after the parties’ child became an adult because the final judgment dissolving the parties’ marriage gave the wife exclusive possession only during the child’s minority. When the child reached the age of majority the wife’s right to exclusive possession terminated; the husband was entitled to rental credit to offset the wife’s claim for contribution. Weiner v. Weiner, 37 So. 3d 395,  (4th DCA 2010). Attached Case law: 1. Martin v. Martin, 959 So.2d 803 (1st DCA 2007). Special circumstances justifying no exclusive use and possession of home for majority timesharing parent. 2. Cabrera v. Cabrera, 484 So.2d 1338 (3rd DCA 1986). Exclusive use and possession of a nonmarital residence appropriate when occupying, majority timesharing parent has a definite need, and the non-occupying spouse is financially able to provide home without sacrifice.

See Martin v. Martin, [*804]  HAWKES, J. William Scott Martin appeals the final judgment dissolving his marriage to Rhonda J. Martin. He contends the trial court abused its discretion in three ways: first, by not awarding him permanent periodic alimony when his former wife earns approximately two and one-half times more income than he does; second, by not partitioning the marital residence despite the special circumstances of this case; and third, by summarily denying his motion for attorney’s fees and costs despite the substantial income disparity between the parties. We AFFIRM the denial of alimony, REVERSE as to the trial court’s failure to partition the marital residence and award attorney’s fees and costs, and REMAND for further proceedings. Facts The parties married in August 1992 and separated in December 2004. The former wife filed for dissolution  [**2] in February 2005. At the time of their separation, the parties had two children under the age of ten, and had resided in the newly built marital residence for less than a year. The marital residence was encumbered by a $ 229,215.00 mortgage, and had a market value of $ 408,000.00. The former wife had a bachelor’s degree in accounting, worked as a CPA, and, including bonuses, earned approximately $ 125,000.00 in gross annual income. The former husband had an associate of arts degree, worked as a factory shift worker, and, including overtime, earned approximately $ 50,000.00 in gross annual income. In July 2006, the trial court entered a final judgment, which denied the former husband’s request for permanent periodic alimony; ordered equitable distribution of marital assets, including the marital home, but denied partition since the former wife was named primary residential parent for the children; and denied the former husband’s request for attorney’s fees and suit costs. The home was to be sold upon the youngest child attaining majority, or the former wife’s remarriage. [*805]  Partition of Marital Residence Distribution of marital assets and liabilities, including the marital residence, begins  [**3] with the premise of equal distribution unless there is justification for unequal distribution under the statutory factors. § 61.075(1), Fla. Stat. (2005). As a general rule, a trial court may award the primary residential parent exclusive use and possession of the marital residence until the youngest child reaches majority or the primary residential parent remarries, unless there are special circumstances. See Martinez v. Martinez, 573 So. 2d 37, 43 (Fla. 1st DCA 1990) rev. denied 581 So. 2d 1309 (Fla. 1991). The parties’ relative financial positions along with other considerations may constitute special circumstances. See Dehler v. Dehler, 648 So. 2d 819, 820 (Fla. 4th DCA 1995). Here, the short duration the parties resided in the marital residence, the lack of other significant marital assets, and the large differential in relative earning power together constitute special circumstances. Based upon these special circumstances, the trial court abused its discretion by refusing to order the partition of the marital residence. On remand, the trial court should order partition, unless the parties reach alternative arrangements. 1 1   Nothing in this opinion should be construed to prohibit  [**4] one party from purchasing the marital residence from the other party in lieu of partition. Attorney’s Fees and Costs Pursuant to section 61.16, Florida Statutes, a trial court may order one party to pay an attorney’s fee, suit money, and costs for the other party. § 61.16, Fla. Stat. (2005). The parties’ financial resources are the primary factor to consider when determining whether to award fees. Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997). The purpose of section 61.16 is to level the playing field in family-law proceedings, ensuring both parties have an equal ability to obtain competent legal counsel. Glasgow v. Wolfe, 873 So. 2d 483, 484 (Fla. 1st DCA 2004). “This provision expressly requires the court to make findings regarding the parties’ respective financial needs and abilities to pay.” Id. at 484-85 (quoting Sumlar v. Sumlar, 827 So. 2d 1079, 1084 (Fla. 1st DCA 2002)). In the instant case, the facts are undisputed. The former wife makes substantially more than the former husband. The former husband received a gift of approximately $ 7,500.00 towards his attorney’s fees and suit costs from his father. He placed the remainder of his litigation costs on a credit card. Additional  [**5] “gifts” from his parents amounted to a $ 9,000.00 interest-free loan, a reduced rental rate on a property owned by his parents in which he was living during the pendency of the dissolution proceedings, a used car titled in his name, and use of a family owned boat. Where the parties’ income disparity is substantial, a trial court abuses its discretion by denying a request for attorney’s fees and costs. See Jacobs v. Jacobs, 585 So. 2d 404, 405 (Fla. 1st DCA 1991); Kelly v. Kelly, 491 So. 2d 330 (Fla. 1st DCA 1986) (finding abuse of discretion in failing to award attorney’s fee where wife had substantially smaller income than husband, the majority of her assets would not become liquid until marital residence was sold, and without liquid assets she would, for the short run, be in a substantially worse financial position than her husband); see also Meighen v. Meighen, 813 So. 2d 173, 177 (Fla. 2d DCA 2002) (holding the granting of partial attorney’s fees and costs may be an abuse of discretion where parties’ income disparity is substantial). Earning two and half-times more than one’s former spouse constitutes a substantial income disparity. Christ v. Christ, 854 So. 2d 244, 248  [*806]  (Fla. 1st DCA 2003);  [**6] Hyatt v. Hyatt, 672 So. 2d 74, 76 (Fla. 1st DCA 1996) (holding trial court’s denial of fees erroneous due to substantial disparity in parties’ income). Occasional gifts of temporary support given on an irregular basis may not be imputed as income under section 61.16, Florida Statutes. See Shiveley v. Shiveley, 635 So. 2d 1021, 1022-23 (Fla. 1st DCA 1994) (holding past gifts from spouse’s parents are not imputed as income); Meighen v. Meighen, 813 So. 2d 173, 176 (Fla. 2d DCA 2002) (holding temporary parental assistance, such as living rent-free in a home owned by a parent during the pendency of the dissolution proceedings does not provide a basis for imputing income). Shiveley reasoned that “[g]ifts which have not yet been received are purely speculative in nature, mere expectancies, and as such are not properly included in the calculation of income for purposes of determining the need for, or the ability to provide, support.” Shiveley, 635 So. 2d at 1022-23. In reviewing the final judgment, it appears the trial court considered parental “gifts” and imputed them as income or “financial resources” when denying former husband attorney’s fees and costs. If such was the case, the trial court  [**7] erred as a matter of law. Id. Since there were no findings made, we cannot determine the rationale for the trial court’s denial of attorney’s fees and costs. AFFIRMED in part, REVERSED in part, and REMANDED. On remand, the court may receive additional evidence if necessary. PADOVANO and POLSTON, JJ., CONCUR.
ELIZABETH CABRERA, Appellant, v. ANTHONY J. CABRERA, JR., Appellee

No. 85-1024 Court of Appeal of Florida, Third District

484 So. 2d 1338; 1986 Fla. App. LEXIS 6847; 11 Fla. L. Weekly 621 March 11, 1986
SUBSEQUENT HISTORY: [**1]  Rehearing Denied April 2, 1986. PRIOR HISTORY: An Appeal from the Circuit Court for Dade County, Edward N. Moore, Judge. COUNSEL: Pardo & Pardo and Joseph Pardo, for Appellant. Horton, Perse & Ginsberg and Mallory Horton, for Appellee. JUDGES: Barkdull, Baskin and Jorgenson, JJ. OPINION BY: PER CURIAM OPINION [*1339]  REVISED OPINION In its final judgment of dissolution, the trial court granted the wife primary custody of the parties’ two-year-old child, ordered the wife and child to vacate the marital residence, and required the husband to pay $7,500 in lump sum alimony and $100 per week in child support. In this appeal, the wife challenges the trial court’s failure to award her exclusive occupancy of the marital home until she remarries or the child attains majority. Agreeing that the trial court abused its discretion, we reverse a portion of the final judgment. Cases dealing with the issue of whether the custodial parent should be awarded exclusive use and possession of the marital home until the children reach majority or the parent remarries have almost without exception answered the question affirmatively.  Cato v. Cato, 432 So.2d 768 (Fla. 2d DCA 1983); Cutler v. Cutler, 421 [**2]  So.2d 585 (Fla. 3d DCA 1982); Pino v. Pino, 418 So.2d 311 (Fla. 3d DCA 1982); Bullard v. Bullard, 413 So.2d 1238 (Fla. 3d DCA 1982); Florence v. Florence, 400 So.2d 1018 (Fla. 1st DCA 1981); Zeller v. Zeller, 396 So.2d 1177 (Fla. 4th DCA 1981); Farrington v. Farrington, 390 So.2d 461 (Fla. 3d DCA 1980), review dismissed, 399 So.2d 1142 (Fla. 1981); Kemmerer v. Kemmerer, 386 So.2d 1248 (Fla. 3d DCA 1980), review denied, 392 So.2d 1376 (Fla. 1981); Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla. 1980); Dolch v. Dolch, 368 So.2d 618 (Fla. 2d DCA 1979); Bailey v. Bailey, 361 So.2d 204 (Fla. 1st DCA 1978); Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977); Reisman v. Reisman, 314 So.2d 783 (Fla. 3d DCA 1975), cert. denied, 336 So. 2d 107 (Fla. 1976). Cf.  Kuvin v. Kuvin, 442 So.2d 203 (Fla. 1983) (marital home not awarded to custodial parent of minor children where $20,000 awarded wife from husband’s share of proceeds of ordered sale of house plus her share of proceeds would permit her to find suitable housing for herself and children); Schein v. Schein, 448 So.2d 16 (Fla. 3d DCA 1984) [**3]  (absent finding of duty on wife’s part to support children, court erred in awarding husband, who had custody of children, rent-free exclusive possession of marital home). [*1340]  Of particular interest is the decision in Florence. There, the first district court of appeal addressed this issue in a case involving facts similar to those before us. The Cabreras resided, for the entire two years of their marriage, in a house purchased by the husband prior to the marriage. In Florence, where the husband had purchased the marital home prior to the three-year marriage, the first district granted the wife exclusive use and possession of the marital home until she remarried or the child reached eighteen or otherwise became emancipated. Because the home remained titled in the husband’s name, the husband remained responsible for the mortgage payments. As did the courts in the other cited cases, the Florence court affirmed the principle that the award of exclusive possession of property is directly connected to the obligation to support. Bullard; Farrington; Duncan v. Duncan, 379 So.2d 949 (Fla. 1980). A review of the parties’ finances discloses that Mr. Cabrera owns [**4]  a controlling interest in a general contracting corporation and has a net worth of approximately $619,000. In addition to the salary he receives from the corporation, he is using corporate funds to buy out his former “partner’s” interest at the rate of $4,166.67 per month. Thus, he is financially able to provide adequate housing for his child without inordinate sacrifice on his part. See Singer. Mrs. Cabrera, on the other hand, has remained a housewife and is rearing the child full time. She did not work outside the home during the marriage. This court previously stated that “the breakup of their parents’ marriage is . . . a severe trauma to young children; this additional physical and psychological dislocation [from the family home] should not be imposed upon them unless there is a very good reason indeed for doing so.” Pino, 418 So.2d at 312; see Singer. As in Pino, no good reason exists here for removing the wife and child from the marital home. We therefore reverse that portion of the final judgment of dissolution which requires the wife and child to remove themselves from the marital home. We hold that the wife is entitled to exclusive occupancy of the residence [**5]  for herself and the child until the wife remarries or the child attains majority, marries or is no longer dependent. Should the wife prefer, she may accept equivalent substitute housing. We find no abuse of discretion in the remainder of the judgment.  Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). For these reasons, we affirm in part, reverse in part, and remand for the entry of a judgment consistent with this opinion and for an equitable determination as to which party shall bear the reasonable and necessary expenses associated with the use and upkeep of the marital home.  Judge v. Judge, 370 So.2d 833 (Fla. 2d DCA 1979); Fraser v. Fraser, 368 So.2d 97 (Fla. 3d DCA 1979). Affirmed in part; reversed in part; remanded for further proceedings consistent with this opinion.

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REQUIRED PLEADING AND PROOF FOR INJUNCTION FOR PROTECTION AGAINST SEXUAL VIOLENCE

IN KELLER v. RAMSEYER o/b/o A.R. and B.R., MINORS, 43 FLW D317b (Fla. 5th DCA) in  Case Nos. 5D17-635, 5D17-639 in an opinion filed on February 9, 2018, injunction for protection against sexual violence reversed where there were no  eyewitnesses, affidavits from eyewitnesses, or direct physical evidence of the alleged abuse to support the allegations.

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(PER CURIAM.) In this consolidated appeal, Appellant (the stepfather of the alleged minor victims) challenges final judgments of injunction for protection against sexual violence filed by Appellee (the father of the alleged minor victims). Although the children denied the allegations during the videotaped interview with the Child Protection Team and there were no eyewitnesses to the alleged abuse, the trial judge granted the injunction primarily based on Appellee’s testimony about what his children allegedly told him. Appellant’s threshold claim of error relates to the admissibility of this testimony under section 90.803(23), Florida Statutes (2017). We need not address this evidentiary issue here because we conclude that Appellant’s other claim of error based on section 784.046(4)(a), Florida Statutes (2017), is dispositive. In this case, there were no eyewitnesses, affidavits from eyewitnesses, or direct physical evidence of the alleged abuse to support the allegations. Accordingly, there was a lack of substantial, competent evidence to support the injunction. See T.B. v. R.B. (In re A.B.), 186 So. 3d 544 (Fla. 2d DCA 2015) (holding that mother failed to meet requirements of section 784.046(4)(a) for obtaining injunction against father where she was not eyewitness to alleged acts and failed to introduce physical evidence or affidavit from eyewitness to alleged acts). The final judgments are reversed.

REVERSED. (TORPY, BERGER and EDWARDS, JJ., concur.)

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Tax consequences of alimony award required to properly calculate income for child support

IN PERSAUD v. PERSAUD,  43 FLW D329a (Fla. 2nd DCA) in case no. 2D16-568 in an opinion filed on February 9, 2018, portion of order awarding prospective durational alimony reversed and remanded to consider tax consequences and child support award reversed and remanded to calculate utilizing the corrected amount of durational alimony after taking tax consequences into consideration in calculating Wife’s income.

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(VILLANTI, Judge.) Gina Persaud (the Wife) appeals the amended final judgment of dissolution of marriage from Dhaniram Persaud (the Husband). On appeal, the Wife argues that the trial court erred by: (1) failing to award her adequate retroactive alimony; (2) not considering the tax consequences of her durational alimony award; and (3) erroneously calculating her retroactive child support obligation. On cross-appeal, the Husband contends that the trial court erred by awarding the Wife any alimony at all. We find merit in only the second and third issues raised by the Wife, and we therefore reverse those aspects of the amended final judgment and remand for further proceedings. In all other respects, we affirm.

After a fourteen-year marriage, the Husband filed for dissolution of marriage on October 14, 2011. The parties initially stipulated to the entry of an order granting temporary relief to the Wife, under which the Husband was required to “pay normal and customary marital expenses of the parties, including without limitation, household mortgage payments, electric, telephone, cable, and auto insurance.” The parties also agreed that the Husband would pay the Wife an additional $1200 per month as temporary support. When the marital home was sold, the court relieved the Husband of his obligation to pay the expenses for that home, but it increased the Wife’s temporary support to $3500 per month effective July 2013. The parties later reached an agreement pertaining to equitable distribution issues, leaving only the issues of alimony, child support, and attorney’s fees for the trial court’s determination.

In the amended final judgment, the court ordered the Husband to pay durational alimony to the Wife of $3800 per month for a term of eight years. It also ordered the Husband to pay $3800 per month in alimony retroactively for the period of October 12, 2010, through July 31, 2013. Finally, the court ordered the Wife to pay retroactive child support for the parties’ minor child for the period April 1, 2011, through July 31, 2013. The Wife appeals all three of these awards, and the Husband cross-appeals the award of durational alimony.

Retroactive Durational Alimony

The Wife first argues that the trial court erred by failing to award her retroactive alimony in accordance with her need during the pendency of the dissolution proceedings, contending that the temporary support award should have been in addition to the expenses of the marital home because the Husband was not paying those expenses as ordered. The trial court found that prior to the sale of the marital home, the Wife required an additional $2357 net after taxes to sustain her lifestyle even after the Husband paid the monthly expenses for the marital home. Nevertheless, the court had awarded only $1200 per month in addition to those expenses — an amount the Wife contends does not meet her demonstrated need.

“[A]n award of retroactive alimony must be based on the receiving spouse’s need for alimony and the paying spouse’s ability to pay.” Valentine v. Van Sickle, 42 So. 3d 267, 274 (Fla. 2d DCA 2010). Need and ability to pay are determined based on the court’s consideration of the factors listed in section 61.08(2), Florida Statutes (2011), including, inter alia, the duration of the marriage, the standard of living established during the marriage, the financial resources and earning capacity of each party, the tax treatment and consequences to both parties of the award, and “[a]ny other factor necessary to do equity and justice between the parties.” “The trial court’s award of alimony is subject to an abuse of discretion standard of review, and where the record does not contain substantial, competent evidence to support the trial court’s findings regarding the amount of alimony awarded, the appellate court will reverse the award.” Wabeke v. Wabeke, 31 So. 3d 793, 795 (Fla. 2d DCA 2009).

Here, contrary to the Wife’s assertions, the Husband continued to pay the expenses of the marital home as ordered during the pendency of the proceedings and until the house was sold. Moreover, the amended final judgment explicitly states that the court considered the factors outlined in section 61.08(2), including the Wife’s earning capacity and history of holding jobs. The record contains competent, substantial evidence supporting the court’s factual and statutory analysis, and we find no abuse of discretion in the award of retroactive durational alimony. Therefore, we affirm that award.

Prospective Durational Alimony

Next, the Wife contends that the trial court erred in determining the amount of her prospective durational alimony award because it failed to consider the tax consequences of that award. On cross-appeal, the Husband argues that the trial court erred by awarding the Wife any durational alimony at all. We reject the Husband’s argument without further comment. However, because we agree with the Wife that the amended final judgment does not show that the court considered the tax consequences of its alimony award, we reverse the award and remand for reconsideration.

In considering the durational alimony award, the trial court found that the Wife had a need of $5630 per month, and it imputed income to her of $2083 per month based on her history of holding sporadic, low-paying jobs. Using those figures, the court found that the Wife had a need for alimony of $3800 per month. The amended final judgment indicates that the alimony awarded would be taxable to the Wife and deductible by the Husband. However, neither party disputes that the tax consequences of the alimony award to the Wife are as follows: $926.36 on $5057 monthly gross income for 2011 and $1195.07 on $5880 monthly gross income for 2012 and 2013. As is clear from these figures, the Wife will actually receive net income significantly less than her demonstrated need of $5630 per month. And these figures form the basis for her claim that the durational alimony awarded is inadequate.

Section 61.08(2)(h) specifically requires that “[i]n determining whether to award alimony . . . the court shall consider . . . [t]he tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.” Further, “[a]n award of alimony must be based on the income that is available to the party, i.e., the party’s net monthly income.” Hanson v. Hanson, 217 So. 3d 1165, 1166 (Fla. 2d DCA 2017) (quoting Moore v. Moore, 157 So. 3d 435, 436 (Fla. 2d DCA 2015)); see also Rosaler v. Rosaler, 219 So. 3d 840, 842 (Fla. 4th DCA 2017) (reversing and remanding for the trial court to make findings regarding the tax consequences of an alimony award). When “[an] award does not provide for the Wife’s needs as they were established during the marriage despite the Husband’s apparent ability to meet those needs, it constitute[s] an abuse of discretion.” Martinez v. Martinez, 228 So. 3d 164, 167 (Fla. 2d DCA 2017).

Here, it is clear from the amended final judgment that the trial court did not consider the tax consequences of its durational alimony award. Moreover, as a result of this oversight, the award does not meet the Wife’s determined need despite the Husband’s ability to pay. Therefore, we reverse this portion of the amended final judgment and remand for the trial court to make findings regarding the tax consequences of the alimony award and adjust the award accordingly.

Retroactive Child Support

Finally, the Wife contends that the trial court erred by using an unpaid award of retroactive alimony when calculating her income for purposes of determining her retroactive child support obligation. Again, we must reverse and remand for further proceedings.

The amended final judgment required the Wife to pay retroactive child support to the Husband for the period of April 1, 2011, through July 31, 2013. In determining the amount of that obligation, the court attributed $3800 in alimony income to the Wife for that period. However, it is clear from the record that the Wife did not actually receive $3800 per month in alimony during that time. Instead, the record shows that she received $1200 per month in alimony from August 2011 through December 2012 and $3500 per month beginning in January 2013. Hence, the trial court awarded retroactive child support based on alimony awards that the Wife never actually received.

In determining an award of retroactive child support, the court shall “apply the guidelines schedule in effect at the time of the hearing subject to the obligor’s demonstration of his or her actual income . . . during the retroactive period.” § 61.30(17)(a) (emphasis added); see also Swor v. Swor, 56 So. 3d 825, 826 (Fla. 2d DCA 2011) (reversing retroactive child support award that was based in part on alimony payments not actually received by the wife). Accordingly, it was error to include unpaid sums of retroactive alimony when calculating the Wife’s monthly income for purposes of retroactive temporary child support. We therefore reverse the award of retroactive child support and remand for recalculation using the income actually available to the Wife during the period in question.

Affirmed in part, reversed in part, and remanded. (SILBERMAN and SALARIO, JJ., Concur.)

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APPLY FOREIGN LAW PROVISION TO PRENUPTAIL AGREEMENT? NOT SO FAST

IN GAL v. GAL, 43 FLW D276d (Fla. 5th DCA) in case no. 5D17-955 in an opinion filed on February 2, 2018, denial of husband’s Motion for Partial Summary judgment seeking enforcement of prenuptial agreement containing Israeli law choice of law provision reversed and remanded where error appeared on face of order in absence of transcript from the hearing below, finding that neither Former Wife’s motion nor the trial court’s order included any discussion about whether Israel’s law would contravene Florida’s public policy. Note this case may resolves the question left to some as to whether LeDoux-Nottingham v. Downs,  which found that a Florida court must follow and give full faith and credit to a sister state’s Order even if it violated the public policy of the State of Florida under the Full Faith and Credit clause would apply to choice of law provisions citing foreign laws. This case, in deciding whether an Israeli choice of law provision applies, must weigh whether it violated to strong public policy of this state.

Full opinion follows at www.woltandassociates.com

(WALLIS, J.) Oshri Gal (“Former Husband”) appeals the trial court’s interlocutory order setting aside his premarital agreement with Hella Ayelet Gal (“Former Wife”) and denying his motion for partial summary judgment, which sought enforcement of the agreement in their dissolution proceedings. Because the trial court improperly disregarded the agreement’s choice of law provision, requiring application of Israeli law, we reverse and remand for further proceedings.

The parties married on July 28, 2011, in Israel, three days after signing a premarital agreement prepared by Former Husband’s attorney. The agreement included a provision stating that Israel’s “Spouses Property Relations Law” would govern. In 2015, Former Husband filed a petition for dissolution and moved for partial summary judgment in Florida, requesting the court to adopt and ratify the premarital agreement. Former Wife then moved to set aside the premarital agreement as unconscionable. After a hearing on the parties’ motions, the trial court entered a thorough omnibus order denying Former Husband’s motion and granting Former Wife’s. The court’s order stated: “Neither party has sought to challenge the Agreement in Israel, rather all pleadings have been filed in Florida. The Court is applying the law of the state of Florida.” The order provided no other analysis concerning the choice-of-law provision and set aside the premarital agreement as unconscionable under Florida law.

Because the parties did not transcribe the hearing below, this court’s review is limited to errors present on the face of the order. See Wilcox v. Munoz, 35 So. 3d 136, 139 (Fla. 2d DCA 2010). “The party seeking to avoid enforcement of the choice-of-law provision has the burden of demonstrating that the foreign law contravenes public policy.” Lamb v. Lamb, 154 So. 3d 465, 467 (Fla. 5th DCA 2015) (citing Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So. 2d 306, 311 (Fla. 2000)). “Generally, Florida courts enforce contractual choice-of-law provisions unless enforcing the chosen forum’s law would contravene strong Florida public policy.” Id. Here, Former Wife challenged the application of the premarital agreement and may have met her burden of proving its unconscionability under Florida law. However, neither Former Wife’s motion nor the trial court’s order includes any discussion about whether Israel’s law would contravene strong Florida public policy — the preliminary question in the matter. See id. The language of the order indicates that the trial court applied Florida law merely because both parties filed their pleadings in Florida, where they now reside. This analysis fails to consider Florida public policy, relying instead on convenience. Therefore, we reverse and remand for further proceedings consistent with the premarital agreement, without prejudice to future challenges under the appropriate law.

REVERSED and REMANDED. (TORPY and EDWARDS, JJ., concur.)

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Child support modification case-Jurisdiction lies where obligor lives

IN IVKO v. GER, 43 FLW D1a (Fla. 3rd DCA) in case no. Case No. 3D17-228 in an opinion filed on December 20, 2017. Order granting Father’s Motion to transfer Jurisdiction over child support/visitation issues from Florida to Pennsylvania  where Mother and children reside reversed on two grounds: First, the trial court cannot transfer the child support matters to Pennsylvania where, given the facts of this case, the requirements and procedures of the UIFSA were not met. Second, and more importantly, the trial court has no authority to transfer the case out of the State of Florida pursuant to the rules of civil procedure and the family law rules governing transfers of actions.

Full opinion follows at: www.woltandassoicates.com

(Before SUAREZ, LAGOA, and LUCK, JJ.)

(SUAREZ, J.) Irena Ivko (the “Mother”) appeals from an order of the trial court granting Igor Ger’s (the “Father”) motion to transfer jurisdiction over child support/visitation issues from Florida to Pennsylvania, where Mother and children now reside. We reverse.

In October 2011, the Miami-Dade Circuit Court entered an order adjudicating paternity, finding Igor Ger the biological father of the two minor children. The court retained jurisdiction over child support, visitation and other child welfare issues. In December 2011, an order on temporary child support issued ordering the Father to pay child support. In 2012, the Mother was allowed to relocate from Florida to Pennsylvania with the minor children, where they currently reside. At the same time, the trial court issued an order transferring the entire case to Pennsylvania. The State of Florida, Division of Child Support Enforcement, filed a motion to vacate on the grounds that, pursuant to Florida Rule of Civil Procedure 1.060, the trial court did not have jurisdiction to transfer the case out of the State of Florida. The trial court vacated the order and jurisdiction remained in Miami-Dade County, Florida. Pending at that time, and still pending, is the Mother’s motion through the Uniform Interstate Family Support Act (“UIFSA”), chapter 88, Florida Statutes (2012) for a determination of permanent child support.

In November 2016, the Father filed a motion to transfer jurisdiction from Miami-Dade County to Bucks County, Pennsylvania, asserting several bases that are unsupported by the record on appeal. The Mother objected, seeking to keep enforcement of child support in Florida. The trial court granted the Father’s motion to transfer the entire case to Pennsylvania, once again specifically stating that Pennsylvania shall have jurisdiction over all time sharing and child support matters. The Mother timely filed this appeal.

We reverse the trial court’s order on two grounds. First, the trial court cannot transfer the child support matters to Pennsylvania where, given the facts of this case, the requirements and procedures of the UIFSA were not met. Second, and more importantly, the trial court has no authority to transfer the case out of the State of Florida pursuant to the rules of civil procedure and the family law rules governing transfers of actions.

Section 88.2051 of the UIFSA controls the outcome of this issue. Section 88.2051(1)(a) mandates that a tribunal that has issued a child support order retains continuing, exclusive jurisdiction to modify its order where that state remains the residence of either the obligor or the obligee, or remains the residence of the child for whose benefit the support order was issued or, pursuant to section 88.2051(2)(a), until all of the parties who are individuals have filed written consents with the Florida tribunal for a tribunal of another state to modify the order and assume continuing exclusive jurisdiction.1 See § 61.13(1)(a)(2), Fla. Stat. (2017) (“The court initially entering an order requiring one or both parents to make child support payments has continuing jurisdiction after the entry of the initial order to modify the amount and terms and conditions of the child support payments . . . .”); Poliak v. Poliak, 235 So. 2d 512, 514 (Fla. 2d DCA 1970) (holding the law of Florida is well settled that a circuit court retains continuing exclusive jurisdiction to modify its custody orders, including visitation privileges, until such time as the minor children reach their majority); see also Yurgel v. Yurgel, 572 So. 2d 1327, 1332 (Fla. 1990) (“[J]urisdiction must be presumed to continue once it is validly acquired under section 61.1308; and it continues up until a Florida court expressly determines on some other basis that jurisdiction no longer is appropriate, until virtually all contacts with Florida have ceased. . . .”); cf. Trissler v. Trissler, 987 So. 2d 209 (Fla. 5th DCA 2008) (noting statutory requirements for Florida’s modification of another state’s child support order similar to those required under UIFSA).

Florida retains continuing jurisdiction to modify this child support order pursuant to the UIFSA, but on this record does not have the authority to transfer the issue to Pennsylvania absent a showing that the statutory exceptions to modification exist. The record shows that the Mother and children now reside in Pennsylvania. The record also indicates that the Father resided in Florida at the time of the entry of the child support order and admits that he is still a Florida resident.2 Indeed, the opposing motions regarding the transfer of jurisdiction indicate the parties have not consented on the record that the Pennsylvania court, which has jurisdiction over the Mother, may modify the Florida child support order and assume continuing jurisdiction pursuant to section 88.2051(2)(a), Florida Statutes (2017).3 See also Sootin v. Sootin, 41 So. 3d 993, 994 (Fla. 3d DCA 2010) (“[T]he correct procedure under UIFSA is to register the spousal support judgment in another state for enforcement there. Even after registration, however, the foreign court must send the case back to the Florida court to consider any modification of the order. Under the UIFSA, out-of-state courts may enforce Florida spousal support orders but may not modify them.” (citations omitted)).

Second, on a more basic level, and as in 2012, the trial court has no authority to transfer the entire paternity / child support case out of the State of Florida. Pursuant to Florida Rule of Civil Procedure 1.060(b), the court may only transfer to any county in the State where it might have been brought in accordance with the venue statutes, not to another state. See Fla. Fam. L.R.P. 12.060(b) (amended March 2017 to mirror the language of Fla. R. Civ. P. 1.060).

We conclude that continuing jurisdiction to modify the child support order remains with the Miami-Dade Circuit court. We therefore reverse the trial court’s order transferring the case to Pennsylvania, and remand for any further proceedings consistent with this opinion. The State of Florida Child Support Division continues to retain the authority to enforce any child support order that may have been issued.

Reversed and remanded.

__________________

1Further, if a child support order of Florida is modified by a tribunal of another state pursuant to the UIFSA or a substantially similar law, the Florida tribunal loses its continuing exclusive jurisdiction with regard to prospective enforcement of the order issued in Florida and may only enforce the order that was modified as to amounts accruing before the modification, or enforce non-modifiable aspects of that order, and provide other appropriate relief for violations of that order which occurred before the effective date of the modification. § 88.2051(3), Fla. Stat. (2017). There is nothing in the record to indicate that this has occurred.

2The Father asserted in his “Reply” (read, Answer) Brief that “neither of the parties were residents” of Florida. But in his recently filed motion to this Court to amend his Answer Brief to correct what he asserts is a “scrivener’s error,” he states that the “corrected evidence should state that the Appellee / Father is a resident of Florida and New York.” The complete misstatement of a dispositive fact on appeal cannot be considered a “scrivener’s error.” The Appellee’s statement of the facts in this appeal has been, to say the least, stretched beyond credulity.

3In his “Reply” (read, Answer) Brief in this appeal, the Father alleges that on January 4, 2017, the trial court held an “evidentiary” hearing on Father’s November 1, 2016 motion to transfer jurisdiction of this case to Pennsylvania. The trial court’s docket, however, indicates that the proceeding that took place on January 4, 2017 was not an evidentiary hearing, but rather a five-minute motion calendar hearing. The difference between a brief motion calendar hearing and an evidentiary hearing is very clear to this Court.

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1 proven incident of stalking sufficient to support injunction

IN PICKETT v. COPELAND, 43 FLW D59b (Fla. 1st DCA) in case no. 1D17-293 in an opinion filed on  January 17, 2018., Order of injunction against stalking reversed finding an abuse of discretion where scant relevant evidence was presented, and the parties’ testimony, at best, was confusing and convoluted. Noting that the court was  sensitive to the difficulties faced by the trial court in teasing out a thread of truth from a jumbled patchwork of conflicting narrative, a careful review of the record compelled a conclusion that the evidence was neither competent nor substantial and therefore insufficient to support the issuance of the injunction.

Full Opinion Follows: www/woltandassociates.com

Mr. Pickett claims that competent, substantial evidence did not support the trial court’s imposition of the permanent injunction against stalking. A trial court has broad discretion to grant an injunction, and we review an order imposing a permanent injunction for a clear abuse of that discretion. Noe v. Noe, 217 So. 3d 196, 199 (Fla. 1st DCA 2017); Weisberg v. Albert, 123 So. 3d 663, 664 (Fla. 4th DCA 2013). But the question of whether the evidence is legally sufficient to justify imposing an injunction is a question of law that we review de novo. Wills v. Jones, 213 So. 3d 982, 984 (Fla. 1st DCA 2016).
Section 784.0485(1), Florida Statutes (2016), “create[s] a cause of action for an injunction for protection against stalking.” The “petition for an injunction for protection against stalking may be filed in the circuit where the petitioner currently or temporarily resides, where the respondent resides, or where the stalking occurred.” § 784.0485(1)(f), Fla. Stat. As defined in section 784.048(2), Florida Statutes (2016), stalking occurs when a person “willfully, maliciously, andrepeatedly follows, harasses, or cyberstalks another person[.]” (Emphasis added.) “Harass” is defined in section 784.048(1)(a) to mean “engag[ing] in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” (Emphasis added.) In its turn, “course of conduct” is defined as “a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose.” § 784.048(1)(b), Fla. Stat. (emphasis added).
“Thus, by its statutory definition, stalking requires proof of repeated acts.” Lukacs v. Luton, 982 So. 2d 1217, 1219 (Fla. 1st DCA 2008); see also Power v. Boyle, 60 So. 3d 496, 498 (Fla. 1st DCA 2011) (“Stalking has been interpreted to mean ‘repeated acts of following or harassment.’ ”) (quoting Lukacs, 982 So. 2d at 1219)). Stated differently, repeated acts are required for “one act of stalking.” Lukacs, 982 So. 2d at 1219 (emphasis in the original); see also Packal v. Johnson, 226 So. 3d 337 (Fla. 5th DCA 2017) (reversing permanent injunction for protection against stalking violence because the evidence did not support a finding of repeat harassment); Carter v. Malken, 207 So. 3d 891, 894 (Fla. 4th DCA 2017) (“A minimum of two incidents of harassment are required to establish stalking.”).
In contrast, several courts have held that a stalking injunction requires proof of two or more separate incidences of “stalking.” See, e.g., Burns v. Bockorick, 220 So. 3d 438, 440 (Fla. 4th DCA 2017) (“ ‘In order to be entitled to an injunction for stalking, the petitioner must allege and prove two separate instances of stalking.’ ”) (quoting David v. Schack, 192 So. 3d 625, 627-28 (Fla. 4th DCA 2016)); Klemple v. Gagliano, 197 So. 3d 1283, 1285 (Fla. 4th DCA 2016) (same); Richards v. Gonzalez, 178 So. 3d 451, 453 (Fla. 3d DCA 2015) (referring to “[e]ach incident of stalking”) (emphasis in original); Touhey v. Seda, 133 So. 3d 1203, 1204 (Fla. 2d DCA 2014) (requiring “each incident of stalking” to be proved). Apparently, this two-incident requirement was adopted based upon “guidance” from the repeat violence statute — section 784.046, Florida Statutes — “which defines repeat violence as ‘two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.’ ” Wyandt v. Voccio, 148 So. 3d 543, 544 (Fla. 2d DCA 2014) (emphasis added); see also David v. Textor, 189 So. 3d 871, 874-75 (Fla. 4th DCA 2016) (“Section 784.0485, Florida Statutes (2014), allows an injunction against stalking, including cyberstalking. The statute must be read in conjunction with section 784.046(1)(b), Florida Statutes (2014), which requires at least two incidences of stalking to obtain an injunction.”); Leach v. Kersey, 162 So. 3d 1104, 1106 (Fla. 2d DCA 2015) (holding that the stalking “statute is analyzed with guidance from the statute governing injunctions against repeat violence, section 784.046”); Touhey, 133 So. 3d at 1203 (“Given the [stalking] statute’s recent enaction, support for our holding comes from cases analyzing allegations of stalking in the context of section 784.046, which applies to injunctions for protection against repeat violence, sexual violence, and dating violence.”) (footnote omitted).
However, nowhere in the definitions of section 784.048 is stalking defined as a multiple of itself. Stalking is defined simply as “willfully, maliciously, and repeatedly” following, harassing, or cyberstalking another person — not repeatedly stalking another person. § 784.048(2), Fla. Stat. Equally important, section 784.0485 makes no reference to the provisions of the repeat violence statute; does not mandate “guidance” from the repeat violence provisions; and, independent of the requirements of section 784.046, creates a “cause of action for an injunction for protection against stalking.” § 784.0485(1), Fla. Stat.; see M. Kimberly Martyn, Representing Battered Spouses, Florida Dissolution of Marriage, §21.78 (Fla. Bar CLE 12th ed. 2015) (“Effective October 1, 2012, a fifth type of protective injunction exists for protection against stalking. F.S. 784.0485(1). The availability of this injunction enables victims of stalking, including cyberstalking, who do not qualify for domestic violence injunctions, to seek relief without the necessity of proving the two separate stalking offenses that are required in repeat violence injunction proceedings.”) (emphasis added).1 Moreover, if a stalking injunction requires two instances of “stalking,” then at least four prohibited events must be proved by the person seeking the injunction — because a single “stalking” offense requires repeated acts of malicious following, and/or harassment, and/or cyberstalking. SeeLukacs, 982 So. 2d at 1220 (“To adopt the view of Appellant would lead to the absurd result of requiring stalking victims to show that they twice suffered from repeated harassment or following before obtaining a protective injunction. Were we to adopt such an interpretation, Appellant could have threatened or followed Appellee four times before the circuit court could issue a protective injunction.”) (emphasis in the original). Therefore, based on the statutory language of section 784.0485, and the definitions set forth in section 784.048, we hold that the injunction provisions of section 784.0485 only require the petitioner to prove a single incident of stalking.
Turning to the facts of this case, it was incumbent on Ms. Copeland to prove stalking by competent, substantial evidence. Thoma v. O’Neal, 180 So. 3d 1157, 1159 (Fla. 4th DCA 2015) (citing McMath v. Biernacki, 776 So. 2d 1039, 1041 (Fla. 1st DCA 2001)). As is so often true in injunction cases, the parties appeared below without counsel. The trial court conscientiously questioned each of the parties, in turn. There was scant relevant evidence presented, and the parties’ testimony, at best, was confusing and convoluted. We are sensitive to the difficulties faced by the trial court in teasing out a thread of truth from a jumbled patchwork of conflicting narrative. But, after having carefully reviewed the record ourselves — mindful that we are not the factfinder — we are compelled to conclude that the evidence was neither competent nor substantial to carry Ms. Copeland’s burden.
While there was evidence that Mr. Pickett followed Ms. Copeland from the Murphy gas station on Thanksgiving Day in 2016, he did so because there was an outstanding warrant for Ms. Copeland’s arrest for violating the injunction he had obtained against her, and while he was following her, it is undisputed that he was talking to the police. That was, at most, a single act of following.2Furthermore, though Ms. Copeland accused Mr. Pickett of driving past her house on multiple occasions — presumably to prove harassment — the evidence only suggested a single incident of his passing by, which falls short of a malicious “course of conduct” serving “no legitimate purpose.” § 784.048(1)(a), (b) & (2), Fla. Stat.; see Leach, 162 So. 3d at 1106 (reversing injunction and holding Leach’s several messages to Kersey by phone, through friends, and on social media, after she learned of an eighteen-month affair between Kersey and Leach’s husband, could not be found to serve “ ‘no legitimate purpose’ ”); Touhey, 133 So. 3d at 1204 (holding record lacked a sufficient basis for the circuit court’s finding that Seda proved “inappropriate contact” constituting stalking, where the testimony did not establish maliciousness or that a reasonable person would have suffered “substantial emotional distress” as a result of Touhey’s behavior).
As a result, we hold there was no competent, substantial evidence to support the imposition of an injunction for protection against stalking. Consequently, the final judgment is reversed.
REVERSED. (LEWIS and RAY, JJ., concur.)
__________________
1In concluding that support for its holding came from analyzing allegations of stalking in the context of section 784.046, the Second District in Touhey drew inspiration from the staff analysis of Senate Bill 950 — the precursor to chapter 2012-153, §§ 3, 6, Laws of Fla. (2012) — which created the cause of action for an injunction against stalking. 133 So. 3d 1203 n.2. The analysis stated: “The ‘statutory cause of action for an injunction for protection against stalking . . . is similar to the current cause[ ] of action for [an] injunction[ ] against repeat violence.’ ” Id. (quoting Fla. S. Crim. Justice Comm., SB 950 (2012), Staff Analysis (Jan. 24, 2012)). We are not persuaded by the referenced staff analysis to abandon our view that the term “stalking” as used in section 784.0485 should be read in the singular. First, we are more persuaded by the general rule “that legislative staff analyses are not determinative of legislative intent, but are only ‘one touchstone of the collective legislative will[ ]’ . . . [and] where the [statutory] language is clear, courts need no other aids for determining legislative intent.” Am. Home Assur. Co. v. Plaza Materials Corp., 908 So. 2d 360, 375-76 (Fla. 2005) (Cantero, J., dissenting) (citations omitted). The language is clear in section 784.0485; the words of the statute are sufficient.
Second, our reading of the full staff analysis only serves to confirm our present conclusion, to the extent that the analysis expressly recognized the need for an injunction specifically directed to the act of stalking because, up to that point, as it was acknowledged in the analysis, a person could only pursue injunctive relief through either the domestic violence injunction statute or the repeat violence injunction statute. And, as the staff analysis went on to point out, the pleading requirements of each of those statutes are more onerous, noting, in particular, that the repeat violence injunction statute requires “two incidents of stalking.” Fla. S. Crim. Justice Comm., SB 950 (2012), Staff Analysis at 4 (Jan. 24, 2012). That distinction is at odds with the later language quoted above and relied on in Touhey, that a cause of action for an injunction against stalking is “similar” to a cause of action for an injunction against repeat violence. Regardless, we decline to define our reasoning in this case by the Senate staff analysis.
2It is clear that the trial court was troubled by the fact that when law enforcement caused Ms. Copeland to pull over into a parking lot, Mr. Pickett got out of his vehicle and used his cell phone to videotape her arrest. However, for purposes of the definition of harassment, “course of conduct” “does not include constitutionally protected activity[.]” § 784.048(1)(b), Fla. Stat. (2016). Even though we recognize that this protective language will not necessarily provide immunity for every instance where an individual videotapes an arrest — because an individual’s actions may go beyond the scope of the constitutional protections — there is a First Amendment right to videotape police officers while they are conducting their official duties in public:
Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public. See Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017); Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014); Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995). Today we join this growing consensus. Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.
Fields v. City of Philadelphia, 862 F.3d 353, 355-56 (3d Cir. 2017).

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Tool to successfully co-parent

As an attorney practicing solely in the area of marital 7 family law, I have seen the damage that co-parenting gone wrong can cause; and it’s the children that pay the price. I believe most parents do not want that result.There is an app for that. Co-parenting can be challenging but there are excellent tools to help. https://www.ourfamilywizard.com/   Is a website that both parents can log into that is enormously helpful.

Other parent an idiot-There’s are really good books that will end the problems: Just go to amazon and Google “co-parenting books. Co-parenting with a jerk, Successful co-parenting. There are a plethora of books that are helpful. The B.I.F.F. book is also one of my most recommended. However, most important to successful co-parenting is tbe wish for it to happen. You must let go of jealousy, anger, revenge and all the negative emotions that often come with and following divorce. The positive emotions and energy you put into making your children happy will ultimately make you happy as what you pout out is what you attract. it’s a simple law of physics. If you have co-parenting issues you cannot resolve, call me. I am here to help. 239-353-9988.

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Professional Women-tools for divorce

I am constantly asked for tools and tips from professional women thinking about divorce. The best resource I have found is via the link below.

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ORDER MAKING FATHER RESPONSIBLE FOR MEDICAL BILLS POST CHILD’S 18TH BIRTHDAY REVERSED

In Dixon v. Dixon n/k/a  Pfundheller, 42 FLW D115a (Fla. 2nd DCA) in case no. 2D16-3099 in an opinion filed on January 5, 2018 child support order extending child support past child’s 18th birthday based on agreement for Father to pay for ongoing diabetes treatment reversed and remanded finding hearing officer erred in treating the medical support payments as a separate obligation that could not be modified in the child support modification proceedings.

Full opinion follows:

(MORRIS, Judge.) Carlton Dixon, the former husband, appeals a supplemental judgment for child support. We reverse the judgment in part because the trial court adopted an erroneous finding by the hearing officer that the former husband was required to continue paying medical support payments for his oldest child1 who had already reached the age of majority. We affirm the other portions of the supplemental judgment without further comment.

Because the facts are undisputed and the trial court’s decision rests on an issue of law, we review the judgment de novo. Jarrard v. Jarrard, 157 So. 3d 332, 337 n.5 (Fla. 2d DCA 2015).

Ordinarily, a child support order terminates automatically on a child’s eighteenth birthday. See Loza v. Marin, 198 So. 3d 1017, 1020 (Fla. 2d DCA 2016) (citing § 61.13(1)(a)(1)(a), Fla. Stat. (2010)). This is because a parent has no legal duty to continue to provide support to a child who has reached the age of majority unless the trial court has made a finding of dependence pursuant to section 743.07(2), Florida Statutes (2010),2 or the parties otherwise agree. Id. (citing § 61.13(1)(a)(1)(a)); see also Grapin v. Grapin, 450 So. 2d 853, 854 (Fla. 1984); Stultz v. Stultz, 504 So. 2d 5, 6 (Fla. 2d DCA 1986). The termination of a legal duty to support includes support for medical services. SeeIson v. Fla. Sanitarium & Benevolent Ass’n, 302 So. 2d 200, 201-02 (Fla. 4th DCA 1974) (holding that “the parent of an emancipated child is not liable for his child’s hospital and medical services”). Thus “a ‘final judgment’s silence on the continuing obligation of support after the child’s eighteenth birthday results in the . . . [support] obligation . . . also terminating upon the child’s eighteenth birthday.’ ” Loza, 198 So. 3d at 1021 (alteration in original) (quoting Phillips v. Phillips, 83 So. 3d 903, 905 (Fla. 2d DCA 2012)).

Here, at the time of the divorce between the former husband and the former wife, Sandra Dixon a/k/a Sandra Pfundheller, the parties’ oldest child was still a minor. The final judgment of dissolution of marriage required the former husband to pay $176.67 per month towards the costs of “ongoing” diabetes treatment for the parties’ oldest child. When the child support amount was amended in April 2010, at a time when the oldest child was still a minor, the $176.67 medical support payments were continued “as previously ordered.” Thus both the final judgment of dissolution and the April 2010 order amending child support were silent on the issue of whether the former husband’s obligation to pay the medical support payments was to continue after the oldest child reached the age of majority. And it is undisputed that the trial court never made a finding that the oldest child was physically incapacitated. Likewise, it is undisputed that the parties never entered into an agreement that the former husband would continue to pay the medical support payments beyond the oldest child’s eighteenth birthday.

The hearing officer erred in treating the medical support payments as a separate obligation that could not be modified in the child support modification proceedings. In his pro se motion to re-determine back child support, the former husband sought to have his obligation to pay the medical support payments cease due to the oldest child’s emancipation based on the child reaching the age of majority. And section 61.13(1)(a)(2)(b), addresses medical support payments within the context of child support payments generally. Thus the medical support payments were subject to modification in the child support modification proceedings.

The hearing officer then compounded the error by concluding that the former husband was obligated to continue paying the medical support payments because the final judgment of dissolution “doesn’t have a stopping date” and because the former wife was still paying for the oldest child’s diabetes treatment. As we have already explained, both the final judgment and the April 2010 order amending child support were silent on the continuing nature of the medical support payments once the oldest child reached the age of majority. Consequently, the former husband’s obligation to pay the medical support payments ended once the oldest child turned eighteen. See Loza, 198 So. 3d at 1021.

Because the trial court erred in adopting the erroneous findings of the hearing officer, we reverse the portion of the supplemental judgment for child support which continues the former husband’s obligation to pay the $176.67 medical support payments. On remand, the trial court should recalculate the former husband’s arrearages consistent with this opinion. See Gilbert v. Cole, 107 So. 3d 426, 427-28 (Fla. 1st DCA 2012) (explaining that where a child support award is allocated3between children and the obligor’s support obligation as to one child ends upon the occurrence of the child’s emancipation, “the obligor is entitled to a retroactive reduction pre-dating a modification petition, consistent with the statutory child support guidelines”); Karten v. Karten, 983 So. 2d 17, 19 (Fla. 3d DCA 2008) (explaining that obligation of support terminates automatically upon a child attaining the age of majority and that “[i]f there must be resort to the court for recalculation of the child support amount for the remaining children, then the recalculation is retroactive to the date the child attained eighteen (or had another qualifying event)”). In all other respects, the supplemental judgment for child support is affirmed.

Affirmed in part, reversed in part, and remanded for proceedings in conformance with this opinion. (KHOUZAM and CRENSHAW, JJ., Concur.)

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1The parties have two children, one of whom is still a minor.

2Section 743.07(1) provides that once a child reaches the age of 18, they are no longer considered a minor and that they enjoy all the same “rights, privileges, and obligations” of persons who are 21 or older “except as otherwise excluded by the State Constitution . . . and except as otherwise provided in the Beverage Law.” But subsection (2) provides that a trial court may order support for a dependent person beyond the age of 18

when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19.

3Although the original final judgment of dissolution awarded a single monthly sum for traditional child support for both children, the final judgment made clear that the $176.67 monthly sum was for the purpose of paying for medical costs related to the oldest child’s diabetes treatments. Thus it is undisputed that the medical support payment amount was an allocated award.

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ORDER ENFORCING 50/50 TIMESHARING REVERSED BASE DON AMBIGUITY IN SETTLEMENT AGREEMENT

In WOHLBERG v. CONNER, 43 FLW D134a (Fla. 4th DCA) in case no. 4D17-390 in an opinion filed on January 10, 2018 per a de novo review order granting the former husband’s motion to enforce the parties’ marital settlement agreement (“MSA”) reversed and remanded to take extrinsic evidence where  MSA was ambiguous as to whether the provision at issue, i.e.,“[i]f the [former husband] continuously and timely exercises timesharing with the minor child for a period of six (6) consecutive months, the parties shall exercise equal timesharing,”  applied to the first six months immediately after the dissolution judgment’s entry, or to any six consecutive months after the dissolution judgment’s entry.

Full opinion follows:

(GERBER, C.J.) The former wife appeals from the circuit court’s order granting the former husband’s motion to enforce the parties’ marital settlement agreement (“MSA”). The court found that a provision in the MSA unambiguously required the parties’ initial 70/30 timesharing schedule in the former wife’s favor be modified to equal timesharing, because the former husband continuously and timely exercised his timesharing for six consecutive months before he filed his motion. According to the former wife, the MSA was ambiguous as to whether the provision applied to the first six months after the dissolution judgment’s entry, or to any six consecutive months after the dissolution judgment’s entry. We agree with the former wife that the MSA’s provision was ambiguous. Therefore, we reverse the order on appeal, and remand for the circuit court to consider the parties’ extrinsic evidence as to which six consecutive months the MSA provision was to be applied.

Procedural History

As stated above, the MSA contained an initial 70/30 timesharing schedule in the former wife’s favor. However, the MSA contained the following condition: “If the [former husband] continuously and timely exercises timesharing with the minor child for a period of 6 consecutive months, the parties shall exercise equal timesharing.” The circuit court entered a final judgment of dissolution incorporating the MSA.

Approximately three months after the dissolution judgment’s entry, the former wife filed a petition requesting that the circuit court find the former husband failed to satisfy the condition which would result in equal timesharing. According to the former wife, the former husband failed to comply with the 70/30 timesharing schedule “continuously and timely” in the first three months after the dissolution judgment’s entry.

The former husband moved to dismiss the former wife’s petition, arguing that the petition was premature because six months had not passed since the dissolution judgment’s entry. The former husband’s response did not argue that the six month period did not apply to only the first six months immediately after the dissolution judgment’s entry.

The circuit court dismissed the former wife’s petition without prejudice.

Over a year later, the former husband filed a motion to enforce the MSA’s condition which would result in equal timesharing. In the motion, the former husband alleged that he “continuously and timely” exercised 70/30 timesharing for the prior six consecutive months. The former husband admitted in the motion that during the first six months immediately after the dissolution judgment’s entry, he “occasionally had to reschedule timesharing due to work and family obligations . . . .”

At a hearing on the former husband’s motion, the parties stipulated that the former husband “continuous and timely” exercised 70/30 timesharing for the six consecutive months immediately before the former husband’s motion. However, the former wife argued that the six consecutive months stated in the MSA referred to the period immediately after the dissolution judgment’s entry, during which the former husband did not “continuous and timely” exercise 70/30 timesharing. The former wife argued, in the alternative, that the MSA was ambiguous as to which six consecutive months the MSA was to be applied.

After the hearing, the circuit court entered a written order granting the former husband’s motion. The court first found no ambiguity in the MSA’s provision that “[i]f the [former husband] continuously and timely exercises timesharing with the minor child for a period of six (6) consecutive months, the parties shall exercise equal timesharing.” The court then found that the former husband “continuous and timely” exercised 70/30 timesharing for the six consecutive months immediately before the former husband’s motion. As a result, the court concluded, the former husband was immediately entitled to equal timesharing.

This appeal followed. The former wife primarily argues that the MSA was ambiguous as to whether the provision at issue applied to the first six months immediately after the dissolution judgment’s entry, or to any six consecutive months after the dissolution judgment’s entry. Thus, the former wife argues, the circuit court should have considered extrinsic evidence of the parties’ intent on this issue which, she alleges, was to limit the provision’s application to the first six months immediately after the dissolution judgment’s entry.

Our Review

Our review is de novo. See Feliciano v. Munoz-Feliciano, 190 So. 3d 232, 233-34 (Fla. 4th DCA 2016) (“The interpretation of the wording and meaning of [a] marital settlement agreement, as incorporated into the final judgment, is subject to de novo review. A marital settlement agreement is interpreted like any other contract.”) (citations and quotation marks omitted).

We agree with the former wife’s argument. The MSA’s provision that “[i]f the [former husband] continuously and timely exercises timesharing with the minor child for a period of six (6) consecutive months, the parties shall exercise equal timesharing,” is ambiguous. The MSA nowhere indicates whether “a period of 6 consecutive months” began immediately after the dissolution judgment’s entry, or could apply to any six consecutive months after the dissolution judgment’s entry. Cf. Crespo v. Crespo, 28 So. 3d 125, 128 (Fla. 4th DCA 2010) (“The MSA failed to specify a time for payment and was thus ambiguous as to the intent of the parties in that regard.”).

Therefore, a hearing to consider extrinsic evidence of the parties’ intent is required. See White v. White, 141 So. 3d 645, 646 (Fla. 4th DCA 2014) (“[W]hen a term in a marital settlement agreement is ambiguous or unclear . . . the trial court may consider extrinsic evidence as well as the parties’ interpretation of the contract to explain or clarify the language.”) (citation and quotation marks omitted).

At the evidentiary hearing to occur on remand, the circuit court also must interpret the MSA in accordance with the child’s best interests at the time of the court’s determination, something which the court did not do upon its initial consideration of the motion at issue. See Kirsch v. Kirsch, 933 So. 2d 623, 626 (Fla. 4th DCA 2006) (“It is fundamental that the court may not remake an agreement between the parties, and if there is any ambiguity, the agreement will be interpreted in accordance with the best interest of the child concerned.”) (alteration and citations omitted); § 61.13(3), Fla. Stat. (2016) (“For purposes of . . . modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration.”).

Reversed and remanded for proceedings consistent with this opinion. (LEVINE, J., and SINGHAL, RAAG, Associate Judge, concur.)

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