 |
|
| |
Turco Legal Blog
Turco Legal Blog - Family Law and Foreclosure Law
Tags >> Palm Beach County
The publicized murder of Sarah Rucker in Volusia County last month is another grim and sad reminder of the dangers faced by a victim of domestic violence. If you have not yet heard of this tragic story, please feel free to click the msnbc link and read their summary. If you found this blog seeking more information about resources for domestic violence victims, consider scheduling a consultation with a Palm Beach County Domestic Violence Attorney. To do so, just call the office at (561)472-0919 and we will coordinate a convenient time for you to meet with our attorney.
http://www.msnbc.msn.com/id/44341355/ns/us_news-crime_and_courts/t/estranged-wife-begged-help-being-killed/
In brief, Sarah was an ongoing victim of her abuser. Sarah did not keep the matter to herself. In fact, she left the abuser and contacted the local sheriff's office repeatedlly for months. The story is expecially tragic because Sarah actually contacted the sheriff's office multiple times the day of her murder during which she was heard screaming and telling dispatch that she was going to be killed.
Not always. When a Final Judgment does not change any term of the support obligation contained in an Administrative Support Order, the Final Judgment is not a superseding order.
This is a child support order originating through an administrative action brought by the Florida Department of Revenue on behalf of the mother against the father. Rather than file an initial action in circuit court for child support, a parent may file an administrative action through DOR. In my experience, the process is long, but the repress ration is free to the applicant. However, ONLY child support may be addressed I these actions.
Once there is an administrative order, it can be enforced in circuit court. If there are changes to the award by the circuit court in its subsequent order, said order would supersede the prior order. However, when the circuit court order merely restates that which is in the administrative order, it does not serve to supersede. A bit technical, but it is worth discussing if you are the one in the middle of the process.
The answer is probably, but because everyone has their own definition of what one can "afford," the matter requires additional fact finding. Why? Becuase if this was a hard and fast rule, every payor would make their "expenses" greater than their income so that the could no longer "afford" to pay alimony.
If you would like to speak with a Palm Beach County Divorce Attorney about your case, please call the office at (561)472-0919 and we will schedule a convenient time to meet. Fore more information about the firm, check out the main page of our website at www.turcolegal.com.
Upon petition, the permanent alimony should be eliminated or reduced to nominal when payor's expenses exceed income.
|
|
Posted by Damian Turco in Turco Legal , Palm Beach Foreclosure Attorney , Palm Beach County Foreclosure Attorney , Palm Beach County , mortgage foreclosure , mortgage default , fraud , foreclosure , Florida case law , Florida , Fifteenth Judicial Circuit , Deutsche Bank , 4th DCA
|
Martin County Foreclosure Case Affirmed where homeowner alleged a fraudulent endorsement of note and requests reconsideration.
Many in foreclosure actions erroneously believe if there has been some mishandling of the promissory note by the lender, the lender will not recover. Is is largely incorrect. Clients often bring this issue up in the initial consultation. They have heard it from friends, family, and hairdressers and they have come to an attorney to hopefully confirm the rumor. Unfortunately, losing the promissory note is not a bar to recovery. The case provided below is recent and out of the 4th DCA, which controls in Palm Beach County and Broward County amongst others.
If you found this blog trying to find more information on how the note plays into your case, please continue reading so I can provide a brief but good basic education.
When researching the law, a fundamental principal is to start with the statute, if there is one. The state legislature makes the law pursuant to our state constitution. The court then interprets and applies the law, sometimes making new rules of law as needed to resolve ambiguity or omission left by the legislature. So, like in any project of legal research, we must start with the statute when researching Florida Parental Relocation. It is a VERY particular statute, especially in regards to process. From that we infer that the legislature heavily considered due process involved in this issue, leaving only specific issues to the discretion of the court.
We will discuss the various components of the statute in subsequent entries, as we will case law discussing the courts' interpretations. Here, however, we simply provide the statute in its entirety as of the date of this blog entry:
61.13001 Parental relocation with a child.—
(1) DEFINITIONS.—As used in this section, the term:
(a) “Child” means any person who is under the jurisdiction of a state court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act or is the subject of any order granting to a parent or other person any right to time-sharing, residential care, kinship, or custody, as provided under state law.
(b) “Court” means the circuit court in an original proceeding which has proper venue and jurisdiction in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, the circuit court in the county in which either parent and the child reside, or the circuit court in which the original action was adjudicated.
(c) “Other person” means an individual who is not the parent, but with whom the child resides pursuant to court order, or who has the right of access to, time-sharing with, or visitation with the child.
(d) “Parent” means any person so named by court order or express written agreement who is subject to court enforcement or a person reflected as a parent on a birth certificate and who is entitled to access to or time-sharing with the child.
(e) “Relocation” means a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.
(2) RELOCATION BY AGREEMENT.—
(a) If the parents and every other person entitled to access to or time-sharing with the child agree to the relocation of the child, they may satisfy the requirements of this section by signing a written agreement that:
1. Reflects consent to the relocation;
2. Defines an access or time-sharing schedule for the nonrelocating parent and any other persons who are entitled to access or time-sharing; and
3. Describes, if necessary, any transportation arrangements related to access or time-sharing.
(b) If there is an existing cause of action, judgment, or decree of record pertaining to the child’s residence or a time-sharing schedule, the parties shall seek ratification of the agreement by court order without the necessity of an evidentiary hearing unless a hearing is requested, in writing, by one or more of the parties to the agreement within 10 days after the date the agreement is filed with the court. If a hearing is not timely requested, it shall be presumed that the relocation is in the best interest of the child and the court may ratify the agreement without an evidentiary hearing.
(3) PETITION TO RELOCATE.—Unless an agreement has been entered as described in subsection (2), a parent or other person seeking relocation must file a petition to relocate and serve it upon the other parent, and every other person entitled to access to or time-sharing with the child. The pleadings must be in accordance with this section:
(a) The petition to relocate must be signed under oath or affirmation under penalty of perjury and include:
1. A description of the location of the intended new residence, including the state, city, and specific physical address, if known.
2. The mailing address of the intended new residence, if not the same as the physical address, if known.
3. The home telephone number of the intended new residence, if known.
4. The date of the intended move or proposed relocation.
5. A detailed statement of the specific reasons for the proposed relocation. If one of the reasons is based upon a job offer that has been reduced to writing, the written job offer must be attached to the petition.
6. A proposal for the revised postrelocation schedule for access and time-sharing together with a proposal for the postrelocation transportation arrangements necessary to effectuate time-sharing with the child. Absent the existence of a current, valid order abating, terminating, or restricting access or time-sharing or other good cause predating the petition, failure to comply with this provision renders the petition to relocate legally insufficient.
7. Substantially the following statement, in all capital letters and in the same size type, or larger, as the type in the remainder of the petition:
A RESPONSE TO THE PETITION OBJECTING TO RELOCATION MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER PERSON SEEKING TO RELOCATE WITHIN 20 DAYS AFTER SERVICE OF THIS PETITION TO RELOCATE. IF YOU FAIL TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILD, WITHOUT FURTHER NOTICE AND WITHOUT A HEARING.
(b) The petition to relocate must be served on the other parent and on every other person entitled to access to and time-sharing with the child. If there is a pending court action regarding the child, service of process may be according to court rule. Otherwise, service of process shall be according to chapters 48 and 49 or via certified mail, restricted delivery, return receipt requested.
(c) A parent or other person seeking to relocate has a continuing duty to provide current and updated information required by this section when that information becomes known.
(d) If the other parent and any other person entitled to access to or time-sharing with the child fails to timely file a response objecting to the petition to relocate, it is presumed that the relocation is in the best interest of the child and that the relocation should be allowed, and the court shall, absent good cause, enter an order specifying that the order is entered as a result of the failure to respond to the petition and adopting the access and time-sharing schedule and transportation arrangements contained in the petition. The order may be issued in an expedited manner without the necessity of an evidentiary hearing. If a response is timely filed, the parent or other person may not relocate, and must proceed to a temporary hearing or trial and obtain court permission to relocate.
(e) Relocating the child without complying with the requirements of this subsection subjects the party in violation to contempt and other proceedings to compel the return of the child and may be taken into account by the court in any initial or postjudgment action seeking a determination or modification of the parenting plan or the access or time-sharing schedule as:
1. A factor in making a determination regarding the relocation of a child.
2. A factor in determining whether the parenting plan or the access or time-sharing schedule should be modified.
3. A basis for ordering the temporary or permanent return of the child.
4. Sufficient cause to order the parent or other person seeking to relocate the child to pay reasonable expenses and attorney’s fees incurred by the party objecting to the relocation.
5. Sufficient cause for the award of reasonable attorney’s fees and costs, including interim travel expenses incident to access or time-sharing or securing the return of the child.
(4) APPLICABILITY OF PUBLIC RECORDS LAW.—If the parent or other person seeking to relocate a child, or the child, is entitled to prevent disclosure of location information under a public records exemption, the court may enter any order necessary to modify the disclosure requirements of this section in compliance with the public records exemption.
(5) OBJECTION TO RELOCATION.—An answer objecting to a proposed relocation must be verified and include the specific factual basis supporting the reasons for seeking a prohibition of the relocation, including a statement of the amount of participation or involvement the objecting party currently has or has had in the life of the child.
(6) TEMPORARY ORDER.—
(a) The court may grant a temporary order restraining the relocation of a child, order the return of the child, if a relocation has previously taken place, or order other appropriate remedial relief, if the court finds:
1. That the petition to relocate does not comply with subsection (3);
2. That the child has been relocated without a written agreement of the parties or without court approval; or
3. From an examination of the evidence presented at the preliminary hearing that there is a likelihood that upon final hearing the court will not approve the relocation of the child.
(b) The court may grant a temporary order permitting the relocation of the child pending final hearing, if the court finds:
1. That the petition to relocate was properly filed and is otherwise in compliance with subsection (3); and
2. From an examination of the evidence presented at the preliminary hearing, that there is a likelihood that on final hearing the court will approve the relocation of the child, which findings must be supported by the same factual basis as would be necessary to support approving the relocation in a final judgment.
(c) If the court has issued a temporary order authorizing a party seeking to relocate or move a child before a final judgment is rendered, the court may not give any weight to the temporary relocation as a factor in reaching its final decision.
(d) If temporary relocation of a child is approved, the court may require the person relocating the child to provide reasonable security, financial or otherwise, and guarantee that the court-ordered contact with the child will not be interrupted or interfered with by the relocating party.
(7) NO PRESUMPTION; FACTORS TO DETERMINE CONTESTED RELOCATION.—A presumption in favor of or against a request to relocate with the child does not arise if a parent or other person seeks to relocate and the move will materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent or other person. In reaching its decision regarding a proposed temporary or permanent relocation, the court shall evaluate all of the following:
(a) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.
(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.
(d) The child’s preference, taking into consideration the age and maturity of the child.
(e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.
(f) The reasons each parent or other person is seeking or opposing the relocation.
(g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.
(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.
(i) The career and other opportunities available to the objecting parent or other person if the relocation occurs.
(j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(k) Any other factor affecting the best interest of the child or as set forth in s. 61.13.
(8) BURDEN OF PROOF.—The parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the nonrelocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.
(9) ORDER REGARDING RELOCATION.—If relocation is approved:
(a) The court may, in its discretion, order contact with the nonrelocating parent or other person, including access, time-sharing, telephone, Internet, webcam, and other arrangements sufficient to ensure that the child has frequent, continuing, and meaningful contact with the nonrelocating parent or other person, if contact is financially affordable and in the best interest of the child.
(b) If applicable, the court shall specify how the transportation costs are to be allocated between the parents and other persons entitled to contact, access, and time-sharing and may adjust the child support award, as appropriate, considering the costs of transportation and the respective net incomes of the parents in accordance with the state child support guidelines schedule.
(10) PRIORITY FOR HEARING OR TRIAL.—An evidentiary hearing or nonjury trial on a pleading seeking temporary or permanent relief filed under this section shall be accorded priority on the court’s calendar. If a motion seeking a temporary relocation is filed, absent good cause, the hearing must occur no later than 30 days after the motion for a temporary relocation is filed. If a notice to set the matter for a nonjury trial is filed, absent good cause, the nonjury trial must occur no later than 90 days after the notice is filed.
(11) APPLICABILITY.—
(a) This section applies:
1. To orders entered before October 1, 2009, if the existing order defining custody, primary residence, the parenting plan, time-sharing, or access to or with the child does not expressly govern the relocation of the child.
2. To an order, whether temporary or permanent, regarding the parenting plan, custody, primary residence, time-sharing, or access to the child entered on or after October 1, 2009.
3. To any relocation or proposed relocation, whether permanent or temporary, of a child during any proceeding pending on October 1, 2009, wherein the parenting plan, custody, primary residence, time-sharing, or access to the child is an issue.
(b) To the extent that a provision of this section conflicts with an order existing on October 1, 2009, this section does not apply to the terms of that order which expressly govern relocation of the child or a change in the principal residence address of a parent or other person.
History.—s. 2, ch. 2006-245; s. 9, ch. 2008-61; s. 5, ch. 2009-21; s. 4, ch. 2009-180.
|
|
Posted by Damian Turco in Turco Legal , parental relocation , Palm Beach County , Florida case law , Florida , Fifteenth Judicial Circuit , divorce case law , divorce , dissolution of marriage , child relocation , case law
|
Parental Relocation with Child: Can I relocate with my child from Florida?
There are two acceptable means of relocating with a minor child or children in or from Florida. The first way is by agreement with the other parent. The agreement must be in writing, it must be signed, and it must provide for at least a basic plan on timesharing. If you can go this route, you are miles ahead of the game. Be sure to file the original agreement with the clerk on your family case before going. No need to risk misplacing it or leaving any lack of clarity with the court about the relo.
The second, far more cumbersome means, is by petition. Moving with your child away from the other parent can clearly have far reaching effects on the child, his/her relationship with the non relocating parent, and other family members. Accordingly, there are significant procedural and substantive safeguards in place.
|
|
Posted by Damian Turco in Turco Legal , support order , Palm Beach County , income deduction order , Florida case law , divorce case law , divorce , dissolution of marriage , child support , attorneys fees , alimony , 4th DCA
|
What can be included in an income deduction order? What are the limits of income deduction orders?
This question was recently addressed by the 3rd DCA in the case of Diaz v. Diaz but cites law from the 4th DCA. So, it's controlling in Miami-Dade and the Keys and should be very persuasive in Palm Beach County and Broward County.
As a starting point, what is an income deduction order? An income deduction order or "IDO" is most commonly an order issued by the circuit court judge contemporaneously with or after the issuance of a Final Judgment of Dissolution of Marriage (aka divorce) or paternity. It literally orders the payor's employer to take money out of his/her check before the payor's gets it. The payor's employer then sends the money wherever the order directs - usually the State Disbursement Unit, the recipient payee, and, sometimes, the payee's attorney.
|
|
Posted by Damian Turco in summary judgment , Residential Mortgage Foreclosure Mediation Program , real property , Palm Beach County , mortgage foreclosure , mortgage default , mortgage , foreclosure , Florida , Fifteenth Judicial Circuit , case law
|
Reversal of Palm Beach County Foreclosure Action due to Counterclaim and Affirmative Defenses
The real estate boom is chock full of stories of borrowers alleging fraud on he part of their mortgage lender. Indeed, there have been many substantiated cases of predatory lending during this time frame which has made the fraud argument more common. Predatory lending is, essentially, a lender seeking out prospective borrowers with little means and giving them loans with extremely low introductory rates which will later adjust to a level the borrower could not conceivably afford.
Such behavior was egregious and, accordingly, received considerable publicity. The practice and other similarly deceptive behavior on the part of lenders and their agents has been commonly grouped under the category of "mortgage fraud.".
|
|
Posted by Damian Turco in visitation , Turco Legal , psychotherapistpatient privilege , psychotherapist , privilege , parental responsibility , Palm Beach County , Florida case law , Florida , evidence , divorce case law , divorce , dissolution of marriage , case law , 4th DCA
|
We Floridians feel it's important to be able to meet with a psychotherapist without the concern that what we discuss will be discussed outside that little room with the comfortable chairs. The privilege exists for the same reason it exists between attorneys and their clients. We want people to be completely honest and forthcoming with their psychotherapists (and attorneys for that matter). If the patient is not forthcoming, how can we expect the psychotherapist to properly provide treatment?
This protection is codified in Chapter 90 of our statutes.
TO SCHEDULE A TIME TO DISCUSS YOUR CASE WITH OUR ATTORNEY(S), CALL OUR OFFICE AT (561)472-0919. CLICK HERE TO COMPLETE A CONTACT FORM.
Under section 90.503, Florida Statutes (2011):
(2) A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.
This privilege is very strong. So strong that it can almost never be breached. That means there is almost never an opportunity for one party to a family litigation to force the psychotherapist of the other party to spill the beans and testify in open court as to what the patient said. It's a good thing. Without it, nobody with serious issues and children would ever see a psychotherapist.
BUT, it's important to note that I've used the phrase "almost never" multiple times now. That's because there is a narrow exception to the rule and there is specific procedure as to how the analysis is to go. The exception is when there is a "calamitous event" as we are reminded with the recent case of NATALIA G. SMITH, Petitioner, v. GEOFFREY SMITH, Respondent. 4th District. Case No. 4D11-354.
In the Smith case, the 4th DCA reminds us "Only in situations where calamitous events such as an attempted suicide occur during a pending custody dispute have courts found that the mental health of the parent is sufficiently at issue to warrant finding no statutory privilege exists. See Miraglia v. Miraglia, 462 So. 2d 507 (Fla. 4th DCA 1984); Critchlow v. Critchlow, 347 So. 2d 453 (Fla. 3d DCA 1977)."
And, in fact, in my recent review of the string of cases where the issue of psychotherapist-patient waiver arose, the only events that were cited as calamitous were attempted suicides and murder. The court is and has been careful to not limit calamitous events to these events, but clearly the situation must be extreme for the court to consider such waiver.
Why is this important? Because in MANY, MANY cases, perhaps your case, at least one party believes the behavior of the other is "calamitous." It is in such instances that a party is well assisted by a competent attorney who can properly frame the severity of the situation objectively.
If you are the party seeking the privileged information, fear not. One reason the privilege is so strong here is that the court has another tool to determine whether a party is psychologically able to care for his/her children - it may order a psychological evaluation of the party.
The Smith case further lays out the procedure to determine whether the privilege should be waived and also the properly appellate procedure in the event a party believes the trial court got it wrong.
The court in Smith waived the privilege merely on the proffered testimony of the attorneys. This was error. The DCA found that the party, not her attorney, may put her mental health at issue. AND, when the trial court does get the ruling wrong on a discovery order, the proper method of getting to the DCA review level is by petitioning the DCA for certiorari.
Accordingly, the 4th DCS held as follows:
"We grant certiorari for the trial court to hold an evidentiary hearing in which it will consider whether the wife placed her mental health at issue so as to abrogate her statutory privilege. Should the court find that the wife's privilege was waived, it should first review her mental health records in camera prior to releasing them in their entirety to the husband. If instead the court finds, after evidentiary hearing, that the wife did not sufficiently put her mental health at issue and did not waive her psychotherapist-patient privilege, it should then consider ordering an independent psychological evaluation."
If you are a party seeking the psychological records of the other, be sure it is because the other party's behavior may amount to a calamitous event, that the other party's mental health has been put at issue, and that there are parenting issues relevant to the mental health of the other party. If there is no calamitous event but concerns regarding the other party's mental health exist in relation to that party's ability to parent, motion the court for a psychological evaluation.
REMEMBER THAT CASE LAW CHANGES THE LAW AND, ACCORDINGLY, THE CONTENT OF THIS BLOG MAY BE OUTDATED AND, THEREFORE, THIS ENTRY IS NOT TO BE CONSIDERED LEGAL ADVICE. RATHER, CONSIDER THE CONTENT HEREIN COMMENTARY GIVEN AT THE DATE THIS BLOG ENTRY WAS MADE. FOR A PROPER ANALYSIS OF YOUR CASE, CALL OUR OFFICE TO SET UP A CONSULTATION - (561)472-0919.
|
|
Posted by Damian Turco in Turco Legal , Palm Beach County , Florida case law , Florida , divorce case law , divorce , dissolution of marriage , case law , attorneys fees , 4th DCA , 2nd DCA
|
The answer is clearly YES in Florida. And a recent case out of the 2nd DCA, released July 1, 2011, provides guidance. That case is: JEFFREY JANKOWSKI, Appellant, v. DAWN M. DEY, a/k/a DAWN JANKOWSKI, f/k/a DAWN CAIN; DONALD P. DeCORT; LAW OFFICE OF DONALD P. DeCORT, P.A.; and STAHL CONSULTING GROUP, CPA, Appellees.
BEFORE YOU PROCEED, REMEMBER THAT CASE LAW CHANGES THE LAW AND, ACCORDINGLY, THE CONTENT OF THIS BLOG MAY BE OUTDATED AND, THEREFORE, THIS ENTRY IS NOT TO BE CONSIDERED LEGAL ADVICE. RATHER, CONSIDER THE CONTENT HEREIN COMMENTARY GIVEN AT THE DATE THIS BLOG ENTERY WAS MADE. FOR A PROPER ANALYSIS OF YOUR CASE, CALL OUR OFFICE TO SET UP A CONSULTATION - (561)472-0919.
We'll call this case "Jankowski" to keep things simple. At the trial leval, the Jankowski case was clearly a litigious one. The court notes in it's opinion that the case went on for years and that it was largely fueled by the Husband's conduct. So, the office of the Wife's attorney, DeCort, and her financial expert, Stahl, clearly had to work extensively to properly combat the Husband's litigation and to properly prepare for trial.
In this opinion, the 2nd DCA noted, "The circuit court concluded that “even if the disparity in need and ability to pay were disregarded, an award of $182,639 would separately and independently be justified” by the Former Husband's conduct in that “[t]his latter amount of fees was encountered solely due to the [F]ormer [H]usband's abusive litigation tactics.” Based on these and other findings, the circuit court ordered the Former Husband within thirty days to pay the Former Wife the sum of $214,353 for her attorney's fees and costs."
So here we have an award of nearly $215,000 in the favor of the Wife for her attorney's fees and costs. The costs included $36,000 due to her financial expert, Stahl.
The Husband, by then the Former Husband, did not comply with the order and filed an appeal of the case. The Former Wife and Former Husband then did something that likely caused the Former Wife's attorney great concern.
They entered into an agreement to drop the attorneys fees award in exchange for the Former Husband's dropping of his appeal. The agreement was in the form of a detailed joint stipulation of satisfaction of the judgment for attorneys fees.
Former Wife's former attorney, DeCort, then filed a motion to set aside the stipulated satisfaction. The trial court granted the motion and essentially modified the judgment so that the Former Husband was to then pay amounts owed directly to DeCort and Stahl.
You may be thinking, "What's the problem? If the former husband was ordered to pay $215,000 and the money was owed to the attorney and the expert, why was it error to allow DeCort's motion to set aside the satisfaction?" Well, maybe you're not thinking that, but it's an interesting legal issue. This is the type of case that presents a very good (but expensive) lesson to attorneys in their continued focus on procedural detail.
Here's why. Under Florida Statute 61.16, the court may order one party to pay the other party's attorneys fees and costs in the course of a dissolution of marriage litigation. The court may even, and I'm quoting from the statute here, "in all cases, the court may order that the amount be paid directly to the attorney, who may enforce the order in that attorney's name." BUT, here the court didn't award the fees to be paid to the attorney directly. He ordered them to be paid to the Wife. Therefore, the Wife was the sole party capable of issuing a satisfaction of the judgment whether or not she received the funds and whether or not she ever paid the attorney.
This case further illustrates the rule as was provided in a 4th DCA case in 1996, Lapidus v. Weil, 672 S0. 2d 58 (Fla. 4th DCA 1996). In Lapidus the trial court awarded that $19,000 of fees be paid by the Husband in the favor of the Wife, BUT the award was to be paid directly to the Wife's attorney.
Similarly, the Wife entered in an agreement with the Husband and issued a satisfaction where no funds had been paid to the Wife's attorney. The attorney moved to set the satisfaction aside and the trial court denied. The 4th DCA then reversed saying, "[a]n award which orders payment directly to an attorney is personal and cannot be voided without the attorney's consent” and “that awards granted directly to the attorney are personal and survive any reconciliation and dismissal between the parties.”
The main distinction between the cases is standing and enforcement. The attorney to a litigation has no standing to challenge or enforce an award. However, if the attorney is awarded fees to be paid directly to him or her, the attorney gains standing to enforce that award.
In Jankowski, DeCort and Stahl were left with the option of suing the Former Wife for the funds owed them. The court of appeal noted in this opinion, "Like the circuit court, we deplore the collusive effort by the Former Husband and the Former Wife to deprive the Former Wife's attorneys and expert witness of their fees and costs for the services they rendered on her behalf. Nevertheless, we can find no basis in the record upon which to affirm; accordingly, we reverse the circuit court's order." A difficult lesson for the professionals but a proper enforcement of the law.
TO SCHEDULE A TIME TO DISCUSS YOUR CASE WITH OUR ATTORNEY(S), CALL OUR OFFICE AT (561)472-0919.
|
|
|
|
|
|
Request Your FREE Attorney Consultation
|
| Turco Legal handles all components of divorce matters including, the dissolution of marriage, alimony, custody, child support, enforcement of alimony and support, child relocation, paternity, same-sex couples, prenuptial agreements, postnuptial agreements, antenuptial agreements, cohabitation agreements, restraining orders, domestic violence, domestic abuse. The firm also handles all components of adoption matters, including surrogacy, surrogate mother representation, placement, and foster care placement. The firm also handles all components of estate planning, including wills, last wills and testaments, trusts, revocable trusts, irrevocable trusts, intervivos trusts, pour over wills, pet trusts, honorary trusts, durable power of attorney, health care advanced directives, health care surrogates, health care proxies, health care proxy, do not prolong life order, probate, intestate distribution, will contests, capacity challenges, guardianships, and homestead property. |
|
|
|
