SUMMARY:

The issue of subsequent children for purposes of determining child support is addressed in Fla. Stat. 61.30(12)(a-c). As a general rule, the existence of subsequent children should not be considered by the court as a basis for disregarding the child support amount provided by the guidelines. The parent with a support obligation for subsequent children may raise the existence of the subsequent children as a justification for deviation form the guidelines schedule. However, if the supporting parent raises the subsequent children as a basis for deviation the income of the other parent of the subsequent children must be considered by the court in determining whether or not there is a basis for deviation.
61.30(12)(a) states that when a parent with a support obligation has subsequent children who were born or adopted after the support obligation arose the court may disregard income from a second job taken by the parent if the court determines the second job was taken primarily to support the subsequent children.
The issue of subsequent children may only be raised in a proceeding for an upward modification of an existing award and may not be applied to justify a decrease in an existing award.

CASE LAW:

Robinson v. Robinson, 657 So.2d 958 (Fla. 1st DCA 1995) (in absence of special circumstances such as a disability that would require greater than normal financial support for a subsequent child, the existence of a subsequent child does not justify deviation from the child support guidelines. Parents should take their obligations to support existing children into consideration before undertaking new support obligations)

Gebauer v. Dep’t of Revenue, 706 So.2d 407 (Fla. 4th DCA 1998) (Higher than normal financial support for a subsequent child or the fact that no other source of income exists for support of the subsequent child other than the payor-parent’s income is an exception to the general rule that a subsequent child does not provide a basis for deviation from the child support guidelines)

The Key thing to note in this case is not that this behavior can’t be a form of dissipation, but the court must create a nexus between the behavior and the alleged dissipation, in order to justify an unequal distribution of assets and debts.  As the court noted, “[a]lthough the parties acknowledge that the “intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition,” can justify a trial court’s unequal distribution of marital assets and liabilities… the trial court’s order does not reflect whether this factor played any role in the distribution of the marital assets and liabilities, and the record before us does not support the inequitable distribution based on this factor…Because the final judgment does not make specific findings, and our review of the record does not support the grossly disproportionate distribution of the parties’ assets and liabilities, we remand for reconsideration of the equitable distribution of the marital assets and liabilities. Upon remand, if the trial court enters an unequal distribution, it must make findings of fact justifying the distribution.”  Id. at 32.  So, being a drunk and a junkie is not enough to justify unequal treatment in equitable distribution, but cashing in the 401-K to buy prostitutes and blow in a 3 day bender in Vegas very well may be.

4 So.3d 778 (2009)

Claude RABBATH, Appellant,
v.
Hala M. FARID, Appellee.

No. 1D07-6583.

District Court of Appeal of Florida, First District.

March 17, 2009.

779*779 Mary A. Kane, of the Law Offices of Mary Kane, LLC, Tallahassee, for Appellant.

Wendy Loquasto, of Fox & Loquasto, P.A., Tallahassee; and Scott T. Manion, Legal Services of North Florida, Inc., Tallahassee, for Appellee.

REVISED OPINION ON APPELLEE’S MOTION FOR REHEARING

BROWNING, J.

We substitute this slightly revised opinion for our opinion in Rabbath v. Farid, 34 Fla. L. Weekly D201 (Fla. 1st DCA Jan. 21, 2009). Claude Rabbath (Appellant), the former husband, appeals several findings of fact and conclusions of law made by the circuit court in a final judgment dissolving Appellant’s 22-year marriage to Hala M. Farid (Appellee), the former wife. Appellant contends that the trial court abused its discretion in 1) finding that 780*780 Appellant concealed income and assets and dissipated marital assets; 2) ordering Appellant to pay Appellee $2,000.00 monthly for permanent, periodic alimony; 3) ordering Appellant to pay Appellee’s attorney’s fees; and 4) imputing income to Appellant and ordering him to pay $1,030.00 monthly for child support. We affirm that portion of the final judgment dissolving the parties’ marriage. However, because no competent, substantial evidence supports the imputation of income to Appellant at the substantial level found by the court, we are constrained to reverse the awards of alimony, child support, and attorney’s fees and to remand for an evidentiary hearing to determine the proper amount of income to impute to Appellant based on his current employment prospects, “recent work history, occupational qualifications, and prevailing earnings level in the community.” § 61.30(2)(b), Fla. Stat. (2005); see Swain v. Swain, 932 So.2d 1214, 1215 (Fla. 1st DCA 2006); Porter v. Porter, 873 So.2d 538, 541 (Fla. 1st DCA 2004); Smith v. Smith, 737 So.2d 641, 645 (Fla. 1st DCA 1999).

I. Concealment of Income and Assets and Dissipation of Marital Assets

“A claim that a payor spouse has arranged his financial affairs or employment situation so as to shortchange the payee spouse is a valid matter to be explored in determining the payor’s real ability to pay.” Id. at 644. In her petition to dissolve the parties’ marriage, Appellee alleged that Appellant had concealed income and had dissipated marital income and assets totaling approximately $150,000.00 while engaged in an ongoing extra-marital affair. Relying on the expert testimony of Barbara Pople and Appellee’s testimony, the trial court determined that Appellant had concealed income and assets relating to his overseas bank and credit card accounts and, since at least 2003, had dissipated marital assets in an amount totaling at least $383,551.83 while engaging in an extra-marital relationship with a woman who lived in Belarus. The trial court specifically took into account the following evidence in the record: sexually explicit e-mails and photos exchanged between Appellant and a woman in Belarus named Nina, whom Appellant described as his “translator”; e-mails between Appellant and a travel agent in Belarus; and Appellant’s financial records, which detailed extensive travel and gift expenses for him and his mistress.

In domestic relations cases, “dissipation” occurs “where one spouse uses marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” Murray v. Murray, 636 So.2d 536, 538-39 (Fla. 1st DCA 1994) (quoting Gentile v. Gentile, 565 So.2d 820, 823 (Fla. 4th DCA 1990), disapproved on other grounds, Acker v. Acker, 904 So.2d 384, 389 (Fla.2005)); Hellwig v. Hellwig, 100 Ill.App.3d 452, 55 Ill.Dec. 762, 426 N.E.2d 1087, 1094 (1981). Adultery can be considered in fashioning an unequal distribution of assets and liabilities to the extent the marital misconduct depleted marital resources. See Childers v. Childers, 640 So.2d 108, 109 (Fla. 4th DCA 1994). Evidence of a spouse’s dissipation of assets is a proper consideration for the trial court in devising an equitable distribution. See Escudero v. Escudero, 739 So.2d 688, 692-93 (Fla. 5th DCA 1999); Romano v. Romano, 632 So.2d 207, 210 (Fla. 4th DCA 1994).

Ms. Pople, who is certified as a public accountant, financial planner, and divorce financial analyst, testified she had analyzed the financial disclosures supplied by the parties. She acknowledged having received very limited information regarding 781*781 the parties’ financial records and activities, from which she drew logical conclusions using whatever data were produced. Appellant testified that after his 25-year employment contract with Michelin in the Middle East ended, the company made it very difficult for him to obtain certain personal financial records. Additionally, he testified that he did not have access to other financial records that remained in the marital residence in Tallahassee, Florida, after Appellee served the petition to dissolve the marriage and Appellant moved to his sister’s residence. Whether or not Appellant acted in good faith and presented the most complete financial records reasonably available to him was a matter of credibility for the trial court to resolve. See Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976). We believe the record supports the reasonable conclusion that Ms. Pople analyzed the parties’ financial activities and records as well as could be expected, given the obvious gaps in the information provided to her.

Even allowing for the fact, asserted by Appellant, that personal checks and business checks are rarely used for payment, and cash is the preferred method of payment in the Middle Eastern economies where he worked for Michelin, we cannot ignore the record evidence that Appellant’s responses to relevant questions regarding his income and expenses were evasive or incomplete. Ms. Pople identified $383,551.83 in transactions during a two-year period of the marriage, which she concluded were very likely instances of asset dissipation. She explained the criteria she used in selecting the various financial transactions, and she included references from Appellant’s financial records to support each item contained in her report. The record supports the trial court’s conclusion that Appellant’s testimony left the vast majority of Ms. Pople’s report of suspected asset dissipation unchallenged. The court accepted competent, substantial evidence indicating that Appellant made unnecessary trips to Belarus, that he and his mistress traveled using marital assets, and that he lavished gifts upon her. Accordingly, we find no abuse of discretion in the trial court’s findings that Appellant dissipated $383,551.83 while engaged in the extra-marital affair and that his misconduct should be factored into the equitable distribution of the parties’ assets and liabilities. See Romano, 632 So.2d at 210.

Likewise, competent, substantial evidence in the record—the testimony of Ms. Pople and Appellee and the financial records—supports the trial court’s conclusion that Appellant tried to conceal income and assets. During the litigation of this case, Appellant failed to disclose a great deal of financial information relevant to his overseas bank and credit card accounts. The record supports the trial court’s determination that Appellant’s testimony failed adequately to explain what happened to substantial marital assets (under his control) while he remained working in the Middle East before relocating to Tallahassee, where his family preceded him. Appellant’s failure to account for these missing funds justifies an unequal distribution of assets and liabilities in Appellee’s favor. Because competent, substantial evidence supports the trial court’s findings of fact concerning equitable distribution, Appellant has not shown an abuse of discretion. See Craig v. Craig, 982 So.2d 724, 727 (Fla. 1st DCA 2008).

18 So.3d 28 (2009)

Richard J. GUOBAITIS, Appellant,
v.
Lisa Lorraine SHERRER, Appellee.

No. 3D07-1270.

District Court of Appeal of Florida, Third District.

September 2, 2009.

29*29 Paul Morris, Miami, for appellant.

Greene Smith & Associates and Cynthia L. Greene, Miami; Fogel Rubin & Fogel, Miami, for appellee.

Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.

ROTHENBERG, J.

The husband, Richard J. Guobaitis, appeals from a final judgment of dissolution of marriage, challenging, in part, the equitable distribution of the marital assets and liabilities, including the trial court’s failure to address the parties’ 2005 federal tax liability, and the award of permanent periodic alimony to the wife, Lisa Lorraine Sherrer. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

In October 2005, the wife petitioned to dissolve the parties’ twenty-one year marriage. At trial, the testimony demonstrated the following. The parties were married in 1984, and have one child who was born in 1994. The husband worked fulltime as a physician until February 2006, and earned $250,000 in 2005. The wife worked part-time as a pharmacist, and was primarily responsible for managing the household and raising the parties’ child.

In 2004, it became apparent that the husband was abusing alcohol. The parties addressed the issue, and agreed that the husband would not enter an in-patient treatment program due to its high cost. 30*30 Instead, the husband took a medication for the treatment of alcoholism and attended Alcoholics Anonymous meetings. Unfortunately, the husband continued to abuse alcohol.

In July 2005, the wife and child, with the husband’s consent, moved to South Carolina to allow the child to attend a specific school. Upon relocating to South Carolina, the wife worked as a pharmacist, earning approximately $85,000 per year. Two months later, the wife returned to Key West for a visit, and found the husband “passed out,” surrounded by drug paraphernalia. The wife subsequently learned that the husband began to use cocaine a month after she relocated to South Carolina. The wife and their child returned to South Carolina, and the following month, the wife filed the petition for dissolution of marriage.

The husband worked throughout 2005. However, in February 2006, the husband was required to withdraw from the practice of medicine when two of his colleagues referred him to Physicians’ Referral Network (“PRN”), an organization that evaluates and treats health care professionals with addiction/substance abuse problems.

In March 2006, the husband entered a fourteen-week in-patient treatment program, and in July 2006, after completing the program, he resumed working. The husband however relapsed, and once again, he was required to withdraw from the practice of medicine, and he entered an in-patient rehabilitation program. As of the final day of trial, which was in December 2006, the husband had not completed the in-patient rehabilitation program.

At trial, Dr. John Eustace, a physician specializing in addiction medicine, testified that addiction is a disease that cannot be controlled solely by willpower because it is a neurobiological disorder. Ninety percent of the physicians who are assisted by PRN return to the practice of medicine, and Dr. Eustace opined that the husband would be in the 90% group, and should return to work within a year.

The husband presented the testimony of the certified public accountant preparing the parties’ 2005 federal income tax returns. The accountant testified that, although he had not completed the tax returns, he estimated that the parties’ 2005 federal tax liability totals approximately $142,000, which includes a capital gains tax of approximately $82,000 for real property the husband sold in 2005.

Following the hearing, the trial court entered its final judgment of dissolution of marriage. Although the equitable distribution of the marital assets and liabilities favors the wife, the trial court failed to set forth any reasons justifying the grossly disproportionate distribution. The trial court failed to take into account the parties’ 2005 federal tax liability, and ordered the wife to assume approximately 27%, and the husband to assume 73%, of the marital liabilities.^[1]Furthermore, the wife was awarded approximately 82% of the marital assets, whereas the husband was awarded approximately 18%. Specifically, the trial court ordered that upon the sale of the marital home, the wife shall receive $760,603.26 as part of the equitable distribution of the marital assets, and shall receive the balance of the proceeds (approximately $140,000) as lump sum alimony.

In addition to lump sum alimony, the trial court found that the wife was entitled to and needs $3,000 per month in permanent periodic alimony, but awarded $500 31*31 per month because it was unclear when the husband would be permitted to resume the practice of medicine. The trial court, however, retained jurisdiction to increase the amount of alimony based on the husband’s ability to pay when he completes the rehabilitation program and resumes employment.

The trial court ordered the husband, based on his income at the time of filing, to pay $1,300 per month in child support, plus 61.45% of the child’s private school tuition, which is approximately $600 per month, and medical and dental expenses. In order to ensure that child support payments are maintained during the husband’s recovery, he was ordered to transfer to the wife, via a Qualified Domestic Relations Order, $25,000 of his interest in a profit sharing plan awarded to him.^[2] The husband’s appeal followed.

The husband contends that the trial court abused its discretion in distributing the marital assets and liabilities. We agree.

The equitable distribution of marital assets and liabilities is governed by section 61.075, Florida Statutes (2006). Subsection (1) provides that “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” set forth in that subsection. “An equal division of marital assets is presumptively proper under section 61.075 and thus an unequal distribution must be justified by findings made by the court.” Porzio v. Porzio, 760 So.2d 1075, 1077-78 (Fla. 5th DCA 2000). See also Pomeranz v. Pomeranz, 901 So.2d 895, 896 (Fla. 4th DCA 2005) (providing that “an equitable distribution plan requires `specific written findings of fact’ including `findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities’” (quoting § 61.075(3)(d), Fla. Stat. (2003))); Bailey v. Bailey, 851 So.2d 286, 287 (Fla. 3d DCA 2003) (“[I]f a court’s distribution of the marital assets is disproportionate, then the court must make written findings in support of its distribution.”); Maddox v. Maddox,750 So.2d 693, 694 (Fla. 1st DCA 2000) (“A trial court may avoid the obligation to divide marital assets equally by making written findings justifying the decision.”); Moore v. Moore, 679 So.2d 1311, 1311 (Fla. 3d DCA 1996) (holding that the “trial court erred in its allocation of the marital debt without setting forth reasons for the unequal distribution”); Bell v. Bell, 587 So.2d 642, 643 (Fla. 1st DCA 1991) (“Absent countervailing circumstances, the starting point in distribution is an approximately equal division of marital assets.”).

The record reflects that although the wife argued during the trial that she was entitled to an unequal distribution of the marital assets based on the husband’s alcoholism, drug abuse, and dissipation of the marital assets during the marriage, the final judgment does not state that the unequal distribution was based on these factors. While we recognize that “[t]he final judgment may offer support for the trial court’s equitable distribution even though the relevant findings are not properly labeled as finding[s] of fact pursuant to section 61.075(3),” Maddox, 750 So.2d at 694, it is unclear to what extent, if any, the trial court’s distribution of the assets and liabilities relied on these factors. For example, 32*32 although it was undisputed that the husband abused both alcohol and drugs during the marriage and his loss of employment was directly caused by his drug use, there was also evidence presented that the decision not to treat the problem aggressively with residential treatment was a joint decision by the husband and wife driven primarily by economic concerns. There was also evidence presented that the husband’s addiction is a disease that cannot be controlled solely by willpower.

Likewise, although the parties acknowledge that the “intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition,” can justify a trial court’s unequal distribution of marital assets and liabilities, § 61.075(1)(i); see Bell, 587 So.2d at 643 (holding that “a party’s conduct is not a valid reason to award a disproportionate amount of the marital assets to an innocent spouse unless [the conduct] depleted the marital assets”), the trial court’s order does not reflect whether this factor played any role in the distribution of the marital assets and liabilities, and the record before us does not support the inequitable distribution based on this factor. The record reflects that the husband’s non-mortgage related debt substantially increased and that the husband depleted approximately $22,000 from a retirement account after the petition was filed. However, a majority of these funds were used to maintain the parties’ marital assets and expenses while the dissolution proceeding was pending.

Because the final judgment does not make specific findings, and our review of the record does not support the grossly disproportionate distribution of the parties’ assets and liabilities, we remand for reconsideration of the equitable distribution of the marital assets and liabilities. Upon remand, if the trial court enters an unequal distribution, it must make findings of fact justifying the distribution. See Franklin v. Franklin, 988 So.2d 125, 126 (Fla. 2d DCA 2008)(holding that the appellate court must reverse an unequal distribution of the marital assets if the trial court fails to make specific findings of facts justifying the distribution). On remand, the trial court is also free to consider the dissipation of marital funds to purchase drugs or to fund the husband’s extramarital affair in determining the equitable distribution of the parties’ assets.^[3]See Heilman v. Heilman, 610 So.2d 60, 61 (Fla. 3d DCA 1992) (“Absent a showing of a related depletion of marital assets, a party’s misconduct is not a valid reason to award a greater share of marital assets to the innocent spouse.”).

We also find that the trial court abused its discretion by not addressing the parties’ 2005 federal tax liability. Although the exact amount owed to the Internal Revenue Service for the 2005 tax year was not certain, there is no doubt that the parties’ federal taxes for 2005 remained unpaid and were due. As stated by Benjamin Franklin in 1789 in a letter to Jean-Baptiste Leroy: “Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes.” http://www. kevinstilley.com/benjamin-franklin-quotes/ (last visited July 15, 2009). See also Huntley, 33*33578 So.2d at 892 (holding that the trial court, in determining party’s net monthly income, erred by refusing to deduct federal income taxes just because spouse “had not yet been required to pay the taxes”).

Lastly, we address the husband’s contention that the trial court abused its discretion by awarding permanent periodic alimony to the wife. We find no abuse of discretion as to the award of permanent periodic alimony, the amount ordered, or the trial court’s reservation of its jurisdiction to reconsider the amount of permanent periodic alimony to be awarded in the future.

In awarding permanent periodic alimony, the trial court recognized several factors: the parties were married for twenty-one years, which is considered a long-term marriage; the husband earned approximately $250,000 in 2005, which is the year when the action was filed, whereas the wife earned less than a quarter of that amount; the parties maintained a fairly high standard of living, which included not only the marital home valued at $1,390,000, but a vacation home; and the wife was primarily responsible for raising their child and managing the household. See§ 61.08, Fla. Stat. (2006). Based on these factors, the trial court found that the wife needed approximately $3,000 per month in permanent periodic alimony. The trial court, however, considered the husband’s situation, and awarded $500 per month until the husband completes the rehabilitation program and resumes employment, and retained jurisdiction to increase the amount commensurate with his ability to pay. Thus, based on the specific facts of this case, we conclude that the trial court did not abuse its discretion in awarding permanent periodic alimony to the wife.

In light of our holding reversing the equitable distribution of the parties’ marital assets and liabilities and remanding for reconsideration, the trial court shall reconsider the entire distribution scheme, including the award of alimony, both permanent periodic and lump sum; the equitable distribution of the marital assets and liabilities; and child support. See Rosario v. Rosario, 945 So.2d 629, 631 (Fla. 4th DCA 2006) (“In dissolution cases, the trial judge has broad discretionary authority to do equity between the parties. Available remedies include lump-sum alimony, permanent periodic alimony, [and] child support…. Because these remedies are interrelated as part of an overall scheme, it is `extremely important that they also be reviewed by appellate courts as a whole, rather than independently.’” (quoting Canakaris v. Canakaris,382 So.2d 1197, 1202 (Fla.1980) (citations omitted))). Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.^[4]

Affirmed in part, reversed in part, and remanded for further proceedings.

[1] If the wife refuses to file a joint tax return for 2005, the husband will be liable for the bulk of the tax liability because the property that was sold was owned by the husband and the husband earned the majority of the income in 2005.

[2] The husband has not appealed any portion of the final judgment pertaining to child support.

[3] The husband acknowledges in his brief that the record demonstrates that he spent approximately $15,000 to purchase drugs and on a “fling.” See Huntley v. Huntley, 578 So.2d 890, 892 (Fla. 1st DCA 1991) (holding that spouse was entitled to an equitable share of all marital assets, including marital resources that were “dissipated by the husband’s addiction”).

[4] The remaining issues raised by the husband lack merit.

Kinds of Military Retirement
Upon retirement from the Military a service member is entitled to receive one of three types of
retirement pensions: 1) non-disability retired pay, 2) disability pay, or 3) reserve pay. The type of
retirement depends on the service member’s status at retirement. The amount of non-disability
pay is determined by the service member’s grade and years of service prior to retirement.
What is the Uniformed Services Former Spouses Protection Act?
The Uniformed Services Former Spouses Protection Act (USFSPA) provides that military retired
or retainer pay is subject to equitable distribution either as property solely of the service member
or as property of the service member and the service member’s spouse in accordance with the
law of the jurisdiction. Essentially, it allows the state courts to equitably distribute military
retirement pay as property or an award in accordance with state law. The act was enacted
because the Supreme Court in McCarty v. McCarty, 453 U.S. 210 (1981) said that the
Supremacy Clause of the U.S. Constitution precluded the state courts from dividing or
distributing military non-disability retired pay in a dissolution action.
What retirement pay is eligible for allocation under USFPA?
Under USFPA, disposable retirement pay is subject to allocation by the courts. Disposable
retirement pay is calculated prior to deduction of federal, state and local income tax and is
essentially the gross amount the service member is receiving.
What about disability retirement pay?
Disability retirement pay is not subject to division or apportionment to the spouse under the
USFSPA. The U.S. Supreme Court in Mansell v. Mansell, 490 U.S. 581 (1989) held that
veteran’s disability pay was not divisible by state courts. The First DCA in Florida held that
USFSPA only empowers state courts to divide disposable retired pay. McMahon v. McMahon,
567 So. 2d 976 (Fla. 1st DCA 1990). In McMahon the court reversed a separation agreement that
allowed the wife to receive retirement pension derived from the husband’s disability and
remanded for a determination of what portion of his retirement was not compensation for the
disability. The Florida Supreme Court went on further to say that a property settlement
agreement for division of military disability benefits is unenforceable (division of non-disability
military retirement pay is still enforceable. Abernethy v. Fishkin, 699 So. 2d 235 (Fla. 1997).
Calculation of Military Retirement pay in a Divorce action
The court is supposed to determine the former spouse’s interest in a service member’s military
retirement based on the value of benefits at the time of the dissolution. If a service member was
married for 10 years and at the time of the divorce had been in the military for 14 years, the court
2
needs to take the base pay of the service member with 14 years experience and determine the
marital portion (which comes out to 10/14 or 71.4% of the base pay). The former spouse is then
entitled to 50% of that amount. At the time the service member retires the spouse would be
entitled to cost of living raises but is not entitled to pre-retirement increases.
APPLICABLE CASE LAW
Giovanini v. Giovanini, 894 So. 2d 275 (Fla. 1st DCA 2004).
The circuit court awarded the former wife an interest in the former husband’s military retirement
pension to be calculated at the time the former husband began receiving the benefit. When the
enforcement order came out it used the military pay scale from the time of retirement to
determine the value of the former wife’s award. The appellate court reversed saying that the
military pay scale from the time of the dissolution should have been used because that was the
value of the benefits former husband was entitled to at the time of the dissolution so that is what
former wife’s share should have been calculated on.
Lawrence v. Lawrence, 904 So. 2d 445 (Fla. 3d DCA 2005).
The circuit court gave the former wife a portion of the former husband’s military retirement pay
without expressly excluding contingent, future post-dissolution increases. The appellate court
reversed because the overbroad language of the trial court had the potential to allow the former
wife to receive accretions of retired pay post dissolution.
Youngblood v. Youngblood, 959 So. 2d 416 (Fla. 1st DCA 2007).
The circuit court held former husband in contempt for failing to pay to former wife a share of his
concurrent disability pay pursuant to the final judgment of dissolution of marriage. The appellate
court reversed, finding that the trial court’s conclusion appeared to be based on the mistaken
belief that concurrent disability pay increased the former husband’s gross retirement pay when it
merely restored retirement pay that the former husband previously was required to waive in order
to receive Veterans’ Administration (VA) disability benefits. As a result its ruling resulted in the
former wife receiving more than one-half of the former husband’s military retirement pay, which
was clearly inconsistent with the final judgment. The court also found that requiring the former
husband to make a payment not required by the final judgment would result in an injustice.
While the former husband eventually would be allowed to receive the full amount of both his
military retirement pay and VA disability benefits, providing him with significantly more income
than the former wife, the instant court could not read the final judgment of dissolution as
permitting the former wife to receive half of all the former husband’s income related to his
military service.
THOMAS J. GIOVANINI, Appellant, v. DONNA L. GIOVANINI, Appellee.
CASE NO. 1D03-5417
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
894 So. 2d 275; 2004 Fla. App. LEXIS 20239; 30 Fla. L. Weekly D 131
December 30, 2004, Opinion Filed
SUBSEQUENT HISTORY: [**1] Released for
Publication March 8, 2005.
PRIOR HISTORY: An appeal from an order from the
Circuit Court for Okaloosa County. Jere Tolton, Judge.
DISPOSITION: AFFIRMED in part, REVERSED in
part, and REMANDED.
COUNSEL: David W. Palmer, II, Fort Walton Beach,
Attorney for Appellant.
Tony Simpson, Shalimar, Attorney for Appellee.
JUDGES: BOOTH, BENTON and LEWIS, JJ.,
CONCUR.
OPINION
[*275] PER CURIAM.
We have before us an appeal from a final order,
which enforced the final judgment of dissolution of
marriage entered in 1988. Former Husband raises several
issues on appeal; however, we only rule on one issue. The
trial court’s reservation of jurisdiction to consider
awarding arrearages, interest and attorney’s fees is not
properly before this court. Gannon v. Amir, 873 So. 2d
532, 533 (Fla. 4th DCA 2004).
The final judgment awarded Former Wife an interest
in Former Husband’s military retirement pension to be
calculated at the time Former Husband began receiving
the benefit. The enforcement order used the 2001 military
pay scale to determine the value of Former Wife’s award.
However, the trial court should have used the 1988
military pay scale because [**2] that would determine
the value of the benefits Former Husband would have
been entitled to at the time of dissolution. Trant v. Trant,
545 So. 2d 428, 429 (Fla. 2d DCA 1989). We therefore,
reverse the portion [*276] of the trial court’s order
calculating the value of Former Wife’s award and remand
for the trial court to calculate the value of the award with
the proper pay scale.
AFFIRMED in part, REVERSED in part, and
REMANDED.
BOOTH, BENTON and LEWIS, JJ., CONCUR.
Page 1
TIMOTHY SCOTT LAWRENCE, Appellant, vs. ANITA LAWRENCE, Appellee.
CASE NO. 3D04-1468
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
904 So. 2d 445; 2005 Fla. App. LEXIS 4355; 30 Fla. L. Weekly D 871
March 30, 2005, Opinion Filed
SUBSEQUENT HISTORY: Released for Publication
July 6, 2005.
PRIOR HISTORY: [**1] An Appeal from the
Circuit Court for Miami-Dade County, Amy Steele
Donner, Judge. LOWER TRIBUNAL NO. 03-4677.
DISPOSITION: Reversed and remanded.
LexisNexis(R) Headnotes
Family Law > Marital Termination & Spousal Support
> Dissolution & Divorce > Property Distribution >
Characterization > Separate Property
[HN1] Florida law considers assets acquired after the
dissolution to be non-marital and not subject to
distribution. Fla. Stat. ch. 61.075(5)(a) (2003). The
valuation of a vested retirement plan is not to include any
contributions made after the original judgment of
dissolution.
COUNSEL: Gilbert C. Betz, for appellant.
Raul G. Ordonez, Jr., for appellee.
JUDGES: Before COPE, WELLS and SHEPHERD, JJ.
OPINION BY: SHEPHERD
OPINION
[*446] SHEPHERD, J.
This is an appeal of a final order of the circuit court
defining and distributing to the Former Wife an aliquot
portion of the Former Husband’s military retired pay
without expressly excluding contingent, future
post-dissolution increases. We find overbroad the
language used by the lower court in its order because of
its potential to allow the Former Wife to receive
accretions of retired pay post dissolution and because it is
contrary to the agreement of the parties. Accordingly, we
reverse and remand.
The Final Judgment of Dissolution of the Lawrence
marriage was issued in November 2003, with the court
reserving jurisdiction to enter further orders concerning
the transfer of interests in retirement benefits as
previously agreed to by the parties. According to the
marital settlement agreement, the former [**2] spouses
agreed that each “shall [] be entitled to 50% of the value
of their respective retirement accounts as calculated from
the date of marriage (October 3, 1992) through the date
of separation [March 15, 2003].”
Believing that it was effecting the parties’ intention,
the lower court adopted the following language in its
order:
The Respondent/Wife, Former Spouse is
awarded a percentage of the member’s
disposable military retired pay, to be
computed by multiplying 50% times a
fraction, the numerator of which is 125.5
Page 1
months of marriage during the member’s
creditable military service, divided by the
member’s total number of months of
creditable military service.
The Former Husband urged the court that its operative
language would result in an award to the Former Wife of
non-marital increases in the Former Husband’s retired pay
resulting from promotions, time in service increases, and
pay increases mandated from time to time by Congress,
and all other increases accruing post-dissolution. Toward
that end, the Former Husband submitted that the court
add to its order the following language: “For the purpose
of this computation the member’s military retired pay is
defined [**3] as the military retired pay the member
would have received had the member retired on March
15, 2003, with a retired pay base of $ 5,258.50 with 14
years of creditable service.” The lower court declined to
accept the Former Husband’s proposed language, which
would have limited the Former Wife to sharing in the
benefits accrued only during the term of the marriage.
This appeal by the Former Husband follows.
[HN1] Florida law considers assets acquired after the
dissolution to be non-marital and not subject to
distribution. Section 61.075(5)(a), Fla. Stat. (2003). The
Florida Supreme Court has held that the valuation of a
vested retirement plan is not to include any contributions
made after the original judgment of dissolution. Boyett,
703 So. 2d at 451. Because the law is unequivocal in this
area, and because the parties to this dissolution had
already expressed their desire to equally share their
respective pensions based upon the actual time of the
marriage, i.e. 10 years, we find that the lower court’s
adopted language was inherently ambiguous as to
whether future accretions of military retired pay would
subsequently make their way into the calculation [**4]
of the final award. Boyett, 683 So. 2d at 1141 (not
permissible for former wife “to benefit from the former
husband’s labor after the divorce”).
We hold that the lower court’s order neither fully
accomplished the parties’ stated intention, nor complied
with Florida [*447] law, and conclude that the language
requested to be inserted in the order by the Former
Husband would more readily have served these purposes.
Accordingly, we reverse the decision below and remand
this case for inclusion of the Former Husband’s proposed
language in the order appealed. We further direct that in
correcting the order below, the trial court insure that it
“reserves jurisdiction to supervise the payments of [such]
pension benefits” to the extent necessary in the future.
DeLoach, 590 So. 2d at 963.
Reversed and remanded with directions.
Page 2
904 So. 2d 445, *446; 2005 Fla. App. LEXIS 4355, **2;
30 Fla. L. Weekly D 871
DAVID RAY YOUNGBLOOD, Former Husband, Appellant, v. MARCELLA ANN
YOUNGBLOOD, Former Wife, Appellee.
CASE NO. 1D06-4946
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
959 So. 2d 416; 2007 Fla. App. LEXIS 9571; 32 Fla. L. Weekly D 1542
June 21, 2007, Opinion Filed
SUBSEQUENT HISTORY: Released for Publication
July 9, 2007.
PRIOR HISTORY: [**1]
An appeal from the circuit court for Okaloosa County.
Jack R. Heflin, Judge.
Youngblood v. Youngblood, 905 So. 2d 895, 2005 Fla.
App. LEXIS 7683 (Fla. Dist. Ct. App. 1st Dist., 2005)
DISPOSITION: REVERSED.
LexisNexis(R) Headnotes
Military & Veterans Law > Veterans > Benefits >
Disability Benefits
[HN1] Effective January 1, 2004, federal legislation
provides for the phased restoration of retirement pay
currently deducted from certain military retirees’ accounts
due to their receipt of Veterans’ Administration (VA)
disability benefits. 10 U.S.C.S. § 1414. This restoration of
retirement pay has been referred to as “concurrent
disability pay.”
COUNSEL: Joseph D. Lorenz of Poche & Lorenz, LLP,
Shalimar, for Appellant.
Janis L. Burke, Fort Walton Beach, for Appellee.
JUDGES: WEBSTER, J. ALLEN, J., CONCURS;
BENTON, J., DISSENTS WITH WRITTEN OPINION.
OPINION BY: WEBSTER
OPINION
[*417] WEBSTER, J.
The former husband seeks review of the trial court’s
order holding him in contempt for failing to pay to the
former wife a share of his concurrent disability pay
pursuant to the final judgment of dissolution of marriage.
Because we agree with the former husband that he was
not required to make such a payment pursuant to the final
judgment, we reverse the order holding him in contempt
and directing him to pay the former wife a share of his
concurrent disability pay.
In 2000, the trial court entered a final judgment
dissolving the parties’ 43-year marriage. At the time, the
former husband, who was retired from the military and
disabled, was receiving both military retirement pay and
Veterans’ Administration (VA) disability benefits.
However, as a condition of receiving VA disability
benefits, the former husband was required to waive a
corresponding amount of his military retirement pay (VA
waiver). See [**2] Mansell v. Mansell, 490 U.S. 581,
583-84, 109 S. Ct. 2023, 104 L. Ed. 2d 675 (1989).
Because the former husband was receiving $ 2,366.00
each month in VA disability benefits, he waived $
2,366.00 of his gross military retirement pay, resulting in
net military retirement pay of $ 100.51. The final
Page 1
judgment provided that “[t]he parties have agreed that the
Wife shall be due one-half (1/2) of the Husband’s military
retirement pay as a vested property right, and one-half
(1/2) of his VA waiver as permanent periodic alimony.”
By giving the former wife one-half of the former
husband’s VA waiver as alimony, the final judgment
assured that the former wife would receive her full share
of the former husband’s military retirement as if no VA
waiver had been taken. See Longanecker v. Longanecker,
782 So. 2d 406 (Fla. 2d DCA 2001). Thus, under the final
judgment, the former wife received $ 50.25 each month
in retirement pay and $ 1,183.00 (one-half of the VA
waiver) in monthly alimony for a total monthly payment
to the former wife of $ 1,233.25, which was equivalent to
one-half of the former husband’s military retirement pay
if no VA waiver had been taken.
[HN1] Effective January 1, 2004, federal legislation
provided for the phased restoration [**3] of retirement
pay currently deducted from certain military retirees’
accounts due to their receipt of VA disability benefits. 10
U.S.C. § 1414. [*418] This restoration of retirement pay
has been referred to as “concurrent disability pay.”
Beginning in February 2004, the former husband received
$ 750.00 each month in concurrent disability pay. This
resulted in a $ 750.00 decrease in the VA waiver (from $
2,366.00 to $ 1,616.00) and a corresponding $ 750.00
increase in the former husband’s net retirement pay (from
$ 100.51 to $ 850.51). It also resulted in a reduction in
the former wife’s monthly alimony (from $ 1,183.00 to $
808.00) and an increase in the monthly amount she
received from the former husband’s military retirement
(from $ 50.25 to $ 425.25) for a total monthly payment of
$ 1,233.25. In short, the former wife continued to receive
her full share of the former husband’s military retirement
pay as if no VA waiver had been taken.
In March and June 2004, the former wife filed
motions for contempt and enforcement which claimed,
among other things, that the former husband was not
paying her a share of his concurrent disability pay. In
July 2004, the trial court entered an order concluding
[**4] that under the final judgment of dissolution, the
former wife was entitled to receive one-half of the former
husband’s concurrent disability pay in addition to
one-half of his military retirement pay and one-half of his
VA waiver. The trial court reserved ruling on the amount
of the arrearage in concurrent disability pay and the
former wife’s motion for contempt. The former husband
filed an appeal which this court designated as an appeal
from an appealable, non-final order. In May 2005, this
court affirmed without opinion. Youngblood v.
Youngblood, 905 So. 2d 895 (Fla. 1st DCA 2005) (table).
In June 2006, the trial court entered a final order holding
the former husband in contempt and directing him to pay
an arrearage in concurrent disability pay. This appeal
follows.
The former husband claims that the trial court erred
in holding him in contempt upon concluding that the
former wife was entitled to one-half of his concurrent
disability pay ($ 375.00 per month) in addition to the
monthly payment of $ 1,233.25. The trial court’s
conclusion appears to be based on the mistaken belief
that concurrent disability pay increased the former
husband’s gross retirement pay when, in reality, it [**5]
merely restored retirement pay that the former husband
previously was required to waive in order to receive VA
disability benefits. The trial court’s ruling results in the
former wife receiving more than one-half of the former
husband’s military retirement pay which is clearly
inconsistent with the final judgment. Although the former
husband filed a non-final appeal challenging this ruling
and this court affirmed without opinion, we must
reconsider and correct this erroneous ruling, which has
become the law of the case, because failure to do so
would result in a manifest injustice. See Fla. Dep’t of
Transp. v. Juliano, 801 So. 2d 101, 106 (Fla. 2001);
Logue v. Logue, 766 So. 2d 313, 315 (Fla. 4th DCA
2000). Requiring the former husband to make a payment
not required by the final judgment would result in a
manifest injustice, particularly where the former husband
was held in contempt for failing to make the payment.
We acknowledge that the concurrent disability pay
legislation contemplates that the former husband
eventually will be allowed to receive the full amount of
both his military retirement pay and VA disability
benefits which will provide him with significantly more
income than [**6] the former wife. However, we cannot
read the final judgment of dissolution as permitting the
former wife to receive half of all the former husband’s
income related to his military service. Since this is merely
an action to enforce the final judgment, there is [*419]
no jurisdiction to consider whether modification of the
final judgment is warranted in light of the subsequent
concurrent disability pay legislation. Based on the clear
language of the final judgment, we reverse the trial
court’s final order holding the former husband in
contempt and directing him to pay an arrearage in
Page 2
959 So. 2d 416, *417; 2007 Fla. App. LEXIS 9571, **2;
32 Fla. L. Weekly D 1542
concurrent disability pay.
REVERSED.
ALLEN, J., CONCURS; BENTON, J., DISSENTS
WITH WRITTEN OPINION.
DISSENT BY: BENTON
DISSENT
BENTON, J., dissenting.
The order under review is far from a manifest
injustice, and it faithfully implements our first ruling on
the exact same question earlier in this very case.
Originally, the trial court worded the parties’ divorce
decree-in light of the intricacies of federal law then
obtaining-to require Mr. Youngblood to split his
retirement income with Mrs. Youngblood, who had been
his wife for more than four decades. Later, in
post-judgment proceedings she instituted to give full
effect to the divorce [**7] decree-in light of an
intervening change in federal law-the trial court required
him to pay her half of his “concurrent disability pay” in
addition to half of his “military retirement pay.” On
interlocutory appeal, we affirmed.
Even accepting for present purposes the premise of
the majority opinion that, on general principles, our
original pronouncement of the law was erroneous, the
law of the case ought to be given effect here. Under the
doctrine of the law of the case, the ruling of the highest
appellate court that decides a question is presumptively
binding on the parties in all subsequent stages of the
proceeding, trial and appellate.
Our supreme court has shown great
flexibility in applying the law of the case
doctrine, see Fla. Dep’t of Transp. v.
Juliano, 801 So. 2d 101, 106 (Fla.2001)
(“Moreover, even as to those issues
actually decided, the law of the case
doctrine is more flexible than res judicata
in that it also provides that an appellate
court has the power to reconsider and
correct an erroneous ruling that has
become the law of the case where a prior
ruling would result in a ‘manifest
injustice.’”), and has said:
This is the same suit and
we have not lost
jurisdiction thereof. [**8]
Consequently, we have the
power to correct any error
which the Chancellor or we
may have heretofore made
in the progress of this
litigation. There is no
question of res adjudicata
because this is the same,
not a new and different,
suit. However this Court,
among others, has gone so
far as to hold that it will not
invoke the doctrine of res
adjudicata if to do so would
work injustice. The
propriety of such ruling can
not be questioned when one
reflects upon the fact that
the primary purpose for
which our courts were
created is to administer
justice. In the case of
Wallace v. Luxmoore, 156
Fla. 725, 24 So. 2d 302,
304, we said:
“Stare decisis and res
adjudicata are perfectly
sound doctrines, approved
by this court, but they are
governed by well-settled
principles and when factual
situations arise that to
apply them would defeat
justice we will apply a
different rule. Social and
economic complexes must
compel the extension of
legal formulas and the
approval of new precedents
when shown to be
necessary to administer
justice. In a democracy the
administration of justice is
the primary concern of the
State and when this cannot
be done [*420] effectively
Page 3
959 So. 2d 416, *419; 2007 Fla. App. LEXIS 9571, **6;
32 Fla. L. Weekly D 1542
by adhering to old
precedents they should
[**9] be modified or
discarded. Blind adherence
to them gets us nowhere.”
A Court should have less hesitancy in
changing “the law of the case” before
losing jurisdiction than it would have in
refusing to apply the doctrine of res
adjudicata when all the requisites thereof
are present. We may change “the law of
the case” at any time before we lose
jurisdiction of a cause and will never
hesitate to do so if we become convinced,
as we are in this instance, that our original
pronouncement of the law was erroneous
and such ruling resulted in manifest
injustice. In such a situation a court of
justice should never adopt a pertinacious
attitude.
Beverly Beach Props., Inc. v. Nelson,
68 So. 2d 604, 607-08 (Fla.1953).
Bush v. Holmes, 886 So. 2d 340, 369-70 (Fla. 1st DCA
2004) (Benton, J., concurring) (collecting cases). Rulings
that become law of the case bind the parties in appellate
and trial courts alike for the duration of the case, whether
correct on general principles or not, so long as the facts
on which the appellate decision was based remain the
facts of the case. The law of the case governs, unless the
initial appellate ruling is both (a) erroneous on general
principles and (b) would, if undisturbed, [**10] result in
manifest injustice.
At most, the majority opinion identifies a categorical,
procedural or technical error, not the manifest injustice it
hyperbolically proclaims. The thesis is that “concurrent
disability pay” has a discrete legal character requiring
that it be treated differently from “military retirement
pay.” However that may be, the order under review
evinces the same purpose that animated the parties’
divorce decree, and is a product of the same rationale and
ongoing effort that produced that decree. The majority
opinion “acknowledge[s] that the concurrent disability
pay legislation contemplates that the former husband
eventually will be allowed to receive the full amount of
both his military retirement pay and VA benefits which
will provide him with significantly more income than the
former wife,” ante p. 5, and also-wisely, in my
estimation-seems to leave open the possibility-albeit in a
different proceeding-”to consider whether modification of
the final judgment is warranted in light of the subsequent
concurrent disability pay legislation.” Id.
One of the rationales for the doctrine of the law of
the case has been stated thus: “Judicial resources, already
heavily taxed, [**11] are hardly efficiently allocated
when they are used to twice review the same issue.”
DeGennaro v. Janie Dean Chevrolet, Inc., 600 So. 2d 44,
45 (Fla. 4th DCA 1992) (Anstead, J., specially
concurring). Appellate review also consumes parties’
resources.
Fortunately for litigants and appeals
courts alike, most litigation does not
involve even a single appeal. Whatever
else it may accomplish, an appeal
consumes additional resources. Reflecting
this reality, an important rule of decision
has been devised for litigation that bubbles
up repeatedly into the appellate courts:
Once actually decided by the highest court
to which the case goes, the law of the case
cannot be revisited, with rare exceptions
not applicable here.
Edgewater Beach Owners Ass’n, Inc. v. Bd. of County
Comm’rs of Walton County, Fla., 694 So. 2d 43, 45 (Fla.
1st DCA 1997) (Benton, J., specially concurring).
Breaching this “important rule of decision” in the present
case can only serve as an inducement to relitigating
questions already decided on appeal in other cases, with
the attendant waste of resources by courts and litigants
alike.
[*421] Earlier in the present case, Mr. Youngblood
bore the expense of prosecuting an appeal and [**12]
Mrs. Youngblood bore the expense of defending that
appeal to get an answer to the precise question on which
the court today somersaults. See Youngblood v.
Youngblood, 905 So. 2d 895 (Fla. 1st DCA 2005) (Ervin,
Padovano and Thomas) (table). See also Barry Hinnant,
Inc. v. Spottswood, 481 So. 2d 80, 83 (Fla. 1st DCA
1986); Exchange Invs., Inc. v. Alachua County, 481 So.
2d 1223, 1227 (Fla. 1st DCA 1985) (“While a PCA has
no precedential value, it becomes the law of the case as to
the same parties and can be used for res judicata
Page 4
959 So. 2d 416, *420; 2007 Fla. App. LEXIS 9571, **8;
32 Fla. L. Weekly D 1542
purposes.”) (Ervin, J., concurring in part and dissenting in
part). As law of the case, our first decision should govern.

Relevant Rules: Florida Family Law Rule 12.540 and Florida Rule of Civil Procedure 1.540

Relevant case: Romero v. Romero, 959 So.2d 33 (2007)

Facts: Parties married in 1990, separated in 1998, and a petition was filed 7/20/99.  Parties drafted a marital settlement agreement in January 1999.  Wife signed it on 7/6/99 and filed FA on 9/23/99.  Husband signed MSA on 7/20/99 and filed FA on 7/20/99.  MSA was entered on 9/27/99.

Three years later, Husband petitioned to modify child support.  Wife became aware that Husband had exercised stock options which led to a substantial increase in his income claimed on his 2000 taxes.  Stock was offered to Husband in March 1999.  ¼ of the stock would vest after one year of employment, then 1/48^th of the remaining stock would vest every month for the next 48 months.  At the time the final judgment was entered, no stock had vested.  Wife testified that she was unaware of the stock options at the time of signing the MSA and the options were not disclosed on Husband’s financial affidavit.   Wife filed supplemental petition stating she didn’t know of the stock options and would have wanted half.  She said she would have exercised all the options then immediately sold the stock to reduce her mortgage.  Trial court ruled that options were marital assets and subject to equitable distribution.  Court used W’s experts values of the stock and W’s portion would be $198k, after accounting for taxes.

Holding: Florida has a well-recognized policy favoring the finality of judgments, especially in family law contexts.  Once the litigation is terminated and the time for appeal has run, that action is concluded for all time.  The only exception to this “absolute finality” of final judgments is Florida Rule of Civil Procedure 1.540, which provides limited avenues by which a party can petition for relief from a final judgment.

Appellate court reversed the lower court’s ruling.  It agreed that non-vested stock acquired during marriage is subject to equitable distribution.  The court also agreed with trial court’s findings that Wife did not know about the stock at time of signing.  However, it found that just because H did not disclose stock options on his FA it was not enough to support relief from a final judgment.

Trial court reversed because trial court did not make an adequate finding of fraud.  The original property distribution was reinstated.

What to keep in mind:

1) To set aside a judgment in a family law case, Florida Family Law Rule 12.540 and Florida Rule of Civil Procedure 1.540 apply.

2) To set aside a judgment/order in a family law case, there must be sufficient grounds (mistake, newly discovered evidence, fraud, the judgment is now void, or the judgment has been satisfied).

3) To set aside a judgment in a family law case, it must be filed within one year, unless the motion is based on fraudulent financial affidavits, or unless judgment is void or has been satisfied.

ABSTRACT: THIS STATUTE WAS RECENTLY ADDED TO AND RE-TITLED THE CHILD ABDUCTION PROTECTION ACT. THIS STATUTE GRANTS THE COURT OPTIONS WHEN THERE IS A RISK THAT ONE PARTY WILL REMOVE A CHILD FROM THE STATE OR COUNTRY OR CONCEAL A CHILD’S WHEREABOUTS. THESE OPTIONS ARE AVAILABLE WHEN THE COURT ENTERS A PARENTING PLAN, WHETHER AN INITIAL PROCEEDING OR MODIFICATION PROCEEDING. THE COURT HAS TO LOOK AT FACTORS THAT CREATE A RISK OF VIOLATION AND CAN LIMIT A PARTY’S TIME WITH A CHILD BASED ON ANY RISK. FACTORS THE COURT LOOKS AT INCLUDE PAST ACTIONS BY A PARTY OR RECENT ACTIONS AND CONDITIONS THAT SHOW THE LIKELIHOOD THAT A PARENT WILL LEAVE THE DESIGNATED AREA. THE COURT CAN CONSIDER WHERE THE PARTY MAY GO WHEN DETERMINING WHICH DETERRENTS TO ORDER. THE DETERRENTS CAN RANGE FROM ORDERS PROHIBITING CERTAIN ACTION TO REQUIRED POSTING OF BOND OR OTHER SECURITY.

What can the Court order to protect the child when there is a fear of the parent leaving the state or the country?

The court can order that a parent may not remove the child without notarized written permission by both parents or order of the court. Additionally, the court can order that a parent may not take the child to a country that has not ratified or acceded to the Hague Convention on the Civil Aspects of International Child Abduction unless the other parent agrees in writing.
The Court can require parents to surrender the passport of the child and add the child’s name to the Children’s Passport Issuance Alert Program of the United States. This prevents the parents from applying for a new or renewal passport on behalf of the child.

The Court can also require a party post a bond in an amount sufficient enough to deter abduction.

What specifics can these orders contain?

The court can prohibit the parent from picking up the child at school or daycare or similar facility. The Court can also prohibit from approaching the child at any other location other than the site designated for visitation.

The court can require that a party register the order in another state as a prerequisite to the party traveling to that state.

The Court can require the traveling parent to provide travel itinerary, addresses and phone numbers, and copies of travel documents to the other parent when the child is going to leave a certain geographic area, even with permission.

The court can impose conditions on the exercise of visitation that limits the visitation or requires that the visitation be supervised until such conditions are not necessary.

What does the court need to order these protective measures?

The court can order restrictions under this statute when there is competent substantial evidence that there is a risk that one party may violate the court’s parenting plan by removing a child from this state or country or by concealing the whereabouts of a child. The court can also order restrictions where there is a joint stipulation of the parties or motion by another individual or entity having a right under the law of Florida. The Court may also order restrictions based on any other evidence the Court finds that establishes a credible risk of removal of the child.

What can bond money be used for?

The money can be used to pay the reasonable expenses of recovery of the child when abduction occurs. Reasonable expenses include attorney’s fees and costs associated with bringing the child back.

What are the specific factors the statute enumerates for courts to consider when assessing the need for a bond or other security?

Specifically, the Court can look at whether it was previously found that a party previously removed a child from Florida or another state in violation of a parenting plan. Also, the court can look at whether a parent has threatened to remove the child in violation of a parenting plan either from Florida or another state.

The Court can consider whether there are strong family and community ties somewhere or strong financial reasons to stay/go somewhere. These types of facts can show that it is unlikely that a parent will leave, when the ties are to Florida, or these facts can show it is likely a parent will leave, when the ties are to other states or countries.

The court can look at whether a parent has engaged in activities that suggest plans to leave. For instance, quitting employment, sale of a residence or termination of a residential lease without securing alternate residence, closing bank accounts, liquidating assets, applying for visas or passports, or obtaining travel documents for the child.

The court can consider whether the child or parent has citizenship in another country instead of or in addition to the United States or whether travel is planned to other countries.

The court can consider whether either party has a history of being a victim or perpetrator of domestic violence, child abuse, or child neglect or whether the party has a criminal record.

The court can consider immigration or citizenship status, attempts to become a citizen, any conduct relevant to the risk of abduction, and the ability of a party to remain in the US legally.

The court must consider the financial resources of the parties to set a bond or other security.

Exemptions

A person that is determined to be a victim of Domestic violence, or provides the court with reasonable cause to believe he or she is about to become a victim of domestic violence, is exempt from any statutory orders which seek to minimize or prevent parental abduction of a child. While such persons cannot be held responsible for violations of these kinds of orders, the party is required to satisfy certain reporting requirements of Section 787.03, Florida Statutes, if the party would otherwise be in violation of criminal interference with custody.

Penalties:

A party who violates one of these orders may be subject to civil or criminal penalties. Additionally, he or she may be subject to federal or state warrants under federal or state laws, including the International Parenting Kidnapping Crime Act.

(1) In any proceeding in which the court enters a parenting plan, including a time-sharing schedule, including in a modification proceeding, upon the presentation of competent substantial evidence that there is a risk that one party may violate the court’s parenting plan by removing a child from this state or country or by concealing the whereabouts of a child, upon stipulation of the parties, upon the motion of another individual or entity having a right under the law of this state, or if the court finds evidence that establishes credible risk of removal of the child, the court may:

(a) Order that a parent may not remove the child from this state without the notarized written permission of both parents or further court order;

(b) Order that a parent may not remove the child from this country without the notarized written permission of both parents or further court order;

(c) Order that a parent may not take the child to a country that has not ratified or acceded to the Hague Convention on the Civil Aspects of International Child Abduction unless the other parent agrees in writing that the child may be taken to the country;

(d) Require a parent to surrender the passport of the child or require that:

1. The petitioner place the child’s name in the Children’s Passport Issuance Alert Program of the United States Department of State;

2. The respondent surrender to the court or the petitioner’s attorney any United States or foreign passport issued in the child’s name, including a passport issued in the name of both the parent and the child; and

3. The respondent not apply on behalf of the child for a new or replacement passport or visa; or

(e) Require that a party post bond or other security in an amount sufficient to serve as a financial deterrent to abduction, the proceeds of which may be used to pay the reasonable expenses of recovery of the child, including reasonable attorney’s fees and costs, if the child is abducted.

(2) If the court enters a parenting plan, including a time-sharing schedule, including in a modification proceeding, that includes a provision entered under paragraph (1)(b) or paragraph (1)(c), a certified copy of the order should be sent by the parent who requested the restriction to the Passport Services Office of the United States Department of State requesting that they not issue a passport to the child without their signature or further court order.

(3) If the court enters an order under paragraph (1)(a) or paragraph (1)(b) to prevent the removal of the child from this state or country, the order may include one or more of the following:

(a) An imposition of travel restrictions that require that a party traveling with the child outside a designated geographic area provide the other party with the following:

1. The travel itinerary of the child.

2. A list of physical addresses and telephone numbers at which the child can be reached at specified times.

3. Copies of all travel documents.

(b) A prohibition of the respondent directly or indirectly:

1. Removing the child from this state or country or another specified geographic area without permission of the court or the petitioner’s written consent;

2. Removing or retaining the child in violation of a child custody determination;

3. Removing the child from school or a child care or similar facility; or

4. Approaching the child at any location other than a site designated for supervised visitation.

(c) A requirement that a party register the order in another state as a prerequisite to allowing the child to travel to that state.

(d) As a prerequisite to exercising custody or visitation, a requirement that the respondent provide the following:

1. An authenticated copy of the order detailing passport and travel restrictions for the child to the Office of Children’s Issues within the Bureau of Consular Affairs of the United States Department of State and the relevant foreign consulate or embassy.

2. Proof to the court that the respondent has provided the information in subparagraph 1.

3. An acknowledgment to the court in a record from the relevant foreign consulate or embassy that no passport application has been made, or passport issued, on behalf of the child.

4. Proof to the petitioner and court of registration with the United States embassy or other United States diplomatic presence in the destination country and with the destination country’s central authority for the Hague Convention on the Civil Aspects of International Child Abduction, if that convention is in effect between this country and the destination country, unless one of the parties objects.

5. A written waiver under the Privacy Act, 5 U.S.C. s. 552a, as amended, with respect to any document, application, or other information pertaining to the child or the respondent authorizing its disclosure to the court.

6. A written waiver with respect to any document, application, or other information pertaining to the child or the respondent in records held by the United States Bureau of Citizenship and Immigration Services authorizing its disclosure to the court.

7. Upon the court’s request, a requirement that the respondent obtain an order from the relevant foreign country containing terms identical to the child custody determination issued in this country.

8. Upon the court’s request, a requirement that the respondent be entered in the Prevent Departure Program of the United States Department of State or a similar federal program designed to prevent unauthorized departures to foreign countries.

(e) The court may impose conditions on the exercise of custody or visitation that limit visitation or require that visitation with the child by the respondent be supervised until the court finds that supervision is no longer necessary and orders the respondent to pay the costs of supervision.

(4) In assessing the need for a bond or other security, the court may consider any reasonable factor bearing upon the risk that a party may violate a parenting plan by removing a child from this state or country or by concealing the whereabouts of a child, including but not limited to whether:

(a) A court has previously found that a party previously removed a child from Florida or another state in violation of a parenting plan, or whether a court had found that a party has threatened to take a child out of Florida or another state in violation of a parenting plan;

(b) The party has strong family and community ties to Florida or to other states or countries, including whether the party or child is a citizen of another country;

(c) The party has strong financial reasons to remain in Florida or to relocate to another state or country;

(d) The party has engaged in activities that suggest plans to leave Florida, such as quitting employment; sale of a residence or termination of a lease on a residence, without efforts to acquire an alternative residence in the state; closing bank accounts or otherwise liquidating assets; applying for a passport or visa; or obtaining travel documents for the respondent or the child;

(e) Either party has had a history of domestic violence as either a victim or perpetrator, child abuse or child neglect evidenced by criminal history, including but not limited to, arrest, an injunction for protection against domestic violence issued after notice and hearing under s. 741.30, medical records, affidavits, or any other relevant information;

(f) The party has a criminal record;

(g) The party is likely to take the child to a country that:

1. Is not a party to the Hague Convention on the Civil Aspects of International Child Abduction and does not provide for the extradition of an abducting parent or for the return of an abducted child;

2. Is a party to the Hague Convention on the Civil Aspects of International Child Abduction, but:

a. The Hague Convention on the Civil Aspects of International Child Abduction is not in force between this country and that country;

b. Is noncompliant or demonstrating patterns of noncompliance according to the most recent compliance report issued by the United States Department of State; or

c. Lacks legal mechanisms for immediately and effectively enforcing a return order under the Hague Convention on the Civil Aspects of International Child Abduction;

3. Poses a risk that the child’s physical or emotional health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children;

4. Has laws or practices that would:

a. Enable the respondent, without due cause, to prevent the petitioner from contacting the child;

b. Restrict the petitioner from freely traveling to or exiting from the country because of the petitioner’s gender, nationality, marital status, or religion; or

c. Restrict the child’s ability to legally leave the country after the child reaches the age of majority because of a child’s gender, nationality, or religion;

5. Is included by the United States Department of State on a current list of state sponsors of terrorism;

6. Does not have an official United States diplomatic presence in the country; or

7. Is engaged in active military action or war, including a civil war, to which the child may be exposed;

(h) The party is undergoing a change in immigration or citizenship status that would adversely affect the respondent’s ability to remain in this country legally;

(i) The party has had an application for United States citizenship denied;

(j) The party has forged or presented misleading or false evidence on government forms or supporting documents to obtain or attempt to obtain a passport, a visa, travel documents, a social security card, a driver’s license, or other government-issued identification card or has made a misrepresentation to the United States government;

(k) The party has used multiple names to attempt to mislead or defraud;

(l) The party has been diagnosed with a mental health disorder that the court considers relevant to the risk of abduction; or

(m) The party has engaged in any other conduct that the court considers relevant to the risk of abduction.

(5) The court must consider the party’s financial resources prior to setting the bond amount under this section. Under no circumstances may the court set a bond that is unreasonable.

(6) Any deficiency of bond or security does not absolve the violating party of responsibility to pay the full amount of damages determined by the court.

(7) (a) Upon a material violation of any parenting plan by removing a child from this state or country or by concealing the whereabouts of a child, the court may order the bond or other security forfeited in whole or in part.

(b) This section, including the requirement to post a bond or other security, does not apply to a parent who, in a proceeding to order or modify a parenting plan or time-sharing schedule, is determined by the court to be a victim of an act of domestic violence or provides the court with reasonable cause to believe that he or she is about to become the victim of an act of domestic violence, as defined in s. 741.28. An injunction for protection against domestic violence issued pursuant to s. 741.30 for a parent as the petitioner which is in effect at the time of the court proceeding shall be one means of demonstrating sufficient evidence that the parent is a victim of domestic violence or is about to become the victim of an act of domestic violence, as defined in s. 741.28, and shall exempt the parent from this section, including the requirement to post a bond or other security. A parent who is determined by the court to be exempt from the requirements of this section must meet the requirements of s. 787.03(6) if an offense of interference with the parenting plan or time-sharing schedule is committed.

(8) (a) Upon an order of forfeiture, the proceeds of any bond or other security posted pursuant to this subsection may only be used to:

1. Reimburse the nonviolating party for actual costs or damages incurred in upholding the court’s parenting plan.

2. Locate and return the child to the residence as set forth in the parenting plan.

3. Reimburse reasonable fees and costs as determined by the court.

(b) Any remaining proceeds shall be held as further security if deemed necessary by the court, and if further security is not found to be necessary; applied to any child support arrears owed by the parent against whom the bond was required, and if no arrears exists; all remaining proceeds will be allocated by the court in the best interest of the child.

(9) At any time after the forfeiture of the bond or other security, the party who posted the bond or other security, or the court on its own motion may request that the party provide documentation substantiating that the proceeds received as a result of the forfeiture have been used solely in accordance with this subsection. Any party using such proceeds for purposes not in accordance with this section may be found in contempt of court.

(10) A violation of this section may subject the party committing the violation to civil or criminal penalties or a federal or state warrant under federal or state laws, including the International Parental Kidnapping Crime Act, and may subject the violating parent to apprehension by a law enforcement officer.
HISTORY: S. 4, ch. 2002-65; s. 2, ch. 2006-114, eff. October 1, 2006; s. 18, ch. 2008-61, eff. Oct. 1, 2008; s. 2, ch. 2010-59, eff. Jan. 1, 2011.

SUMMARY:

A spouse is competent to be a witness in any civil or criminal action in which the other spouse is a party or is otherwise interested.  However, either spouse may refuse to disclose, and may prevent another from disclosing communications that were intended to be confidential between spouses and that were made during the marriage. Marital communications are privileged regardless of whether they arise incident to a marital relationship, and even apply to communications in furtherance of a crime.

The privilege applies to sign, gestures, spoken or written statements between a husband and wife.  The privilege does not apply to observations  of facts or actions, which would constitute knowledge gained other than through confidential communication (ex. Spouse can’t be an witness other spouse commit murder and claim spousal privilege, since the knowledge of the murder was not gained through communication of the parties).  The privilege also does not exist to show that the act of communication took place because it is not disclosing the substance of the communication (ex. Proof that one spouse called another spouse at a certain date and time).  Further, communications that a spouse knew or should have known were being overheard by a third party are not privileged (ex. Spouse discussing information in a crowded restaurant).

Communications made between spouses while they are married remain confidential, even after the marriage is resolved.  However, communications before the parties are married or after they are divorced are not privileged.

The privilege cannot be claimed by a spouse during a divorce proceeding because it is an action brought by one spouse against the other.  The privilege also does not apply in criminal proceedings where one spouse is the victim of the other.

The plain meaning of the statute indicates that In a modification proceeding, if one of the parties has since remarried the spousal privilege would apply between that party and their new spouse.  Therefore, confidential communications between the spouses would be privileged.  However, the privilege would not protect bank records, bills, financial accounts, information regarding employment, or other similar information that could be received from an outside source because it would not be confidential communication between the parties.

Applicable Statute:

Fla. Stat. 90.504- Husband/Wife Privilege

Case:

Bolin v. State, 650 So.2d 19 (Fla. 2d DCA 1995)(Court held that a discovery deposition taken of the defendant’s wife by the defense attorney did not waive the spousal privilege)

Full Document Can Be Obtained From Here.

SUMMARY:

Pursuant to Fla. Stat. 90.503, communications between psychotherapists and patients are confidential if they are not intended to be disclosed to third persons other than those persons whose presence is necessary to further treatment, further communication regarding treatment or participating in the diagnosis and treatment.  However no privilege exists for communications relevant to a proceeding to compel hospitalization of a patient for mental health conditions (ex. Baker Act Hearing); communications made in the course of a court-ordered examination of the mental or emotional condition of the patient (ex. evaluation pursuant to a court ordered psychological evaluation); and communications relevant to an issue of mental health when the patient is using the condition as a defense, or in any proceeding in which a party relies upon the condition as an element of the party’s claim or defense (ex. attempted suicide during the pendency of a custody dispute).  Fla. Stat. 61.13(2)(a) requires the trial court to consider the mental health of each parent as a factor in determining what is in the child’s best interest s it relates to timesharing.  However, seeking custody or seeking to retain custody does not in and of itself make the mental health of a parent an element of their claim or defense.

CASE LAW:

O’Neill v. O’Neill, 823 So.2d 837 (Fla. 5^th DCA 2002)

• Father filed emergency motion to modify child custody alleging that the mother suffered from alcohol and drug addiction and was admitted to a residential treatment facility earlier in the year.
• Father sought to obtain the psychological records of the mother from the treatment facility.
• Mother objected based upon psychotherapist privilege and sought a protective order of those records.
• Appellate court held that no privilege existed because the wife had threatened to take her own life and the life of the children, which were serious enough for her friend to drive her to a treatment facility.
• Court held that such statements by the wife, when joined by the supporting behavior constitute a calamitous event that supports an implicit waiver of the statutory privilege.

Full Document Can Be Obtained From Here.

ABSTRACT: Expert witnesses are appropriate to use at a hearing or trial if scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue.  A witness can be qualified as an expert by knowledge, skill, experience, training, or education.  An expert may testify as to relevant facts that he has personal knowledge of and may testify in the form of an opinion.

Relevant Rules/Statutes::    Fla. Stat. 90.702, 90.105; Fla R. Civ. P. 1.390(a); Fla. Fam. L. R. P. 12.390, 12.365.

Applicability:

For family law cases, experts will typically be used to testify regarding medical, psychological, social, financial, vocational, and economic matters.

When can an expert testify as to his opinion?:

An expert can give his opinion on matters in which he has expertise when the opinion is based upon facts which he personally knows, is in response to a hypothetical question, or is in response to facts discloses to the expert at or before trial.

Before an expert can testify as to his opinion, two factual determinations must be made under Fla. Stat. section 90.105.  First, the court has to determine whether the subject matter is proper for expert’s testimony and whether the witness is adequately qualified to express an opinion on the matter.

Expert to determine Value of Marital Assets:

Substantial evidence is required when a court orders the payment of money or the division of property.  An expert can be useful to put on this substantial evidence.

When the marital estate that is being divided is large and complex, it is often necessary that an accountant determine its size and components.  When that happens, the accountant who inventoried the marital property must testify at trial.  Bullard v. Bullard, 385 so.2d 1120 (Fla. 2d DCA 1980).

Expert testifying as to support issues:

Experts can be utilized for multiple issues regarding support.  An expert can be used to show what job opportunities are available to an unemployed or underemployed party to show ability to pay.  Brooks v. Brooks, 602 so.2d 630 (Fla. 2d DCA 1992).

An expert might be necessary to show a spouse has special needs, such as medical treatment or psychological treatment.  Moore v. Moore, 543 so.2d 252 (Fla. 5^th DCA 1989).

Experts testifying for parenting plans (social investigations):

When a parenting plan is in issue, the court may order a qualified person to investigate and file a report regarding the fitness of each parent and the welfare of the child.  Fla. Stat. section 61.20.  When the report is used at trial, the person who conducted the investigation may be called to testify as an expert witness.  Landers v. Landers, 429 so.2d 27 (Fla. 5^th DCA 1983).

Effective July 1, 2011 Florida’s new permanent alimony laws go into effect. The Amendments to Florida Statute 61.08 provide additional protections against permanent alimony.

Read The PDF Document Here.