Second DCA Reverses Adjudication of Dependency Based Solely on Father’s Consent
The marital and family law attorneys of Nugent & Zborowski practice all areas of divorce and family law in West Palm Beach, Florida, and also handle divorce, paternity and modification of alimony and child support cases in West Palm Beach and the greater Palm Beach County, Martin County and Broward County area, including divorce, paternity and support cases in the vicinity of Palm Beach, North Palm Beach, Palm Beach Gardens, Royal Palm Beach and Jupiter.
The West Palm Beach divorce and family law attorneys of Nugent & Zborowski observed the recent ruling of Florida’s Second District Court of Appeals in the case of J.D. v. Department of Children & Family Services and Guardian Ad Litem Program, 35 Fla. L. Weekly D1939a (Fla. 2d DCA Aug. 27, 2010).
In J.D., the Department of Children and Families (“DCF”) commenced a dependancy action against a mother and father. DCF alleged the child was abused. The father consented to the child begin adjudicated as dependant but the mother challenged the dependency action. During the dependency hearing the mother testified that there was never any physical violence between her and father and an investigator testified that there was no evidence that any alleged domestic violence had any impact on the minor child. Despite the testimony of the mother and the investigator, the trial court entered an order adjudicating the child dependant based on father’s consent to the order.
The J.D. court reversed the adjudication of dependancy because “[n]o evidence was presented that the child saw or heard any alleged violence or was otherwise in the presence of such violence. Neither was evidence presented that the child has been impacted, or could reasonably be impacted, by any alleged violence.”
For more information, call 561.844.1200 and speak to an attorney with the Law Offices of Nugent & Zborowski about how your juvenile dependency court matter. To read the above referenced opinion, click here.
The attorneys of Nugent & Zborowski exclusively handle Divorce & Family Law matters in and around West Palm Beach and Palm Beach County, Florida, and also handle divorce, paternity and modification of alimony and child support cases in the vicinity of Palm Beach, North Palm Beach, Palm Beach Gardens, Royal Palm Beach and Jupiter. For more information call (561) 844-1200 or visit the firm’s website, www.nugentlawfirm.com.
Filed Under Juvenile DependencyThird DCA Holds 81 Year Old Could not Automatically Terminate Alimony Payments, Despite Fact that his Retirement was “Reasonable”
The marital and family law attorneys of Nugent & Zborowski practice all areas of divorce and family law in West Palm Beach, Florida, and also handle divorce, paternity and modification of alimony and child support cases in West Palm Beach and the greater Palm Beach County, Martin County and Broward County area, including divorce, paternity and support cases in the vicinity of Palm Beach, North Palm Beach, Palm Beach Gardens, Royal Palm Beach and Jupiter.
The West Palm Beach divorce and family law attorneys of Nugent & Zborowski recently observed the August 18, 2010 opinion of Florida’s Third District Court of Appeals in the Case of Suarez v. Suarez, 35 Fla. L. Weekly D1879a (Fla. 3rd DCA, Aug. 18, 2010). In Suarez, the parties previously reached an agreement where the Former Husband was to pay Former Wife permanent periodic alimony in the amount of $1500/ month. In 2007, the Former Husband filed a Motion to Modify/Terminate alimony before retiring (Former Husband retired after moving to Modify/Terminate alimony).
The Suarez Court applied Pimm v. Pimm, 601 So. 2d 532 (Fla. 1992) to determine that Former Husband’s decision to retire was reasonable. Nonetheless, the Court found that the trial court erred by terminating Former Husband’s alimony obligation because Former Wife had the need for support and Former Husband still had the ability to pay some support. The Suarez Court remanded the case to the trial court for a determination of the parties incomes and consideration of the alimony issue.
For more information, call 561.844.1200 and speak to an attorney with the Law Offices of Nugent & Zborowski about how Florida’s standards relating to modification of alimony and child support apply to your situation.
The attorneys of Nugent & Zborowski exclusively handle Divorce & Family Law matters in and around West Palm Beach and Palm Beach County, Florida, and also handle divorce, paternity and modification of alimony and child support cases in the vicinity of Palm Beach, North Palm Beach, Palm Beach Gardens, Royal Palm Beach and Jupiter. For more information call (561) 844-1200 or visit the firm’s website, www.nugentlawfirm.com.
Filed Under Firm News, ModificationGrandparents’ Rights & Juvenile Dependancy
The marital and family law attorneys of Nugent & Zborowski practice all areas of divorce and family law in West Palm Beach, Florida, and also handle divorce, paternity, modification of alimony and child support and juvenile dependancy cases in West Palm Beach and the greater Palm Beach County, Martin County and Broward County area, including divorce, paternity and support cases in the vicinity of Palm Beach, North Palm Beach, Palm Beach Gardens, Royal Palm Beach and Jupiter.
The West Palm Beach divorce and family law attorneys of Nugent & Zborowski handle various types of proceedings related to divorce and family law, and their representation includes that of grandparents. Pursuant to In the Interest of J.M., 560 So.2d 343 (Fla. 4th DCA 1990), a grandparent may initiate a dependency proceeding on behalf of a minor child. Additionally, pursuant to Section 39.5085, Florida Statutes, a grandparent who is granted temporary custody of a grandchild may qualify for state and federal assistance, and a juvenile court judge has the authority to order a parent to pay child support to a grandparent who has temporary custody of a child. Furthermore, pursuant to Section 39.509, Florida Statutes, a grandparent has the right, in most cases, to reasonable visitation with a grandchild that has been adjudicated “dependant.”
For more information, call 561.844.1200 and speak to an attorney with the Law Offices of Nugent & Zborowski for more information regarding your rights as a grandparent.
The attorneys of Nugent & Zborowski exclusively handle Divorce & Family Law matters in and around West Palm Beach and Palm Beach County, Florida, and also handle divorce, paternity, modification of alimony and child support, and juvenile dependancy cases in the vicinity of Palm Beach, North Palm Beach, Palm Beach Gardens, Royal Palm Beach and Jupiter. For more information call (561) 844-1200 or visit the firm’s website, www.nugentlawfirm.com.
Filed Under Juvenile DependencyFifth DCA Clarifies Standard for Modifying Custody/Timesharing Provisions
The marital and family law attorneys of Nugent & Zborowski practice all areas of divorce and family law in West Palm Beach, Florida, and also handle divorce, paternity and modification of alimony and child support cases in West Palm Beach and the greater Palm Beach County, Martin County and Broward County area, including divorce, paternity and support cases in the vicinity of Palm Beach, North Palm Beach, Palm Beach Gardens, Royal Palm Beach and Jupiter.
The West Palm Beach divorce and family law attorneys of Nugent & Zborowski recently applied the holding in Mesibov v. Mesibov, 16 So. 3d 890 (Fla. 5th DCA 2009) to successfully defeat an action seeking sole parental responsibility (sole custody) of a client’s minor child. In Mesibov, the former husband moved for a modification of custody. The trial court granted the modification based on evidence that “the father was more likely to ensure the child was engaged in productive, normal, and healthy extracurricular activities, and… would benefit from a greater male influence in his life… and [the child] had ‘unmanlike toilet behavior.’”
On appeal, the Mesibov court reversed, finding that the former husband failed to satisfy the extraordinary burden of showing a substantial and material change in circumstances. The Mesibov court held that: “[T]he allegations and evidence are insufficient as a matter of law to satisfy the substantial change test. The child simply did not conform to either the father’s or trial court’s perception of manliness. To the contrary, the evidence showed the child was well-behaved, an excellent student, involved in church activities outside school, and maintained an excellent relationship with his father. While the father criticized the mother, in part, for her singular interest in children and church, her lifestyle does not demonstrate a substantial and material change to justify a custody modification… [t]he preliminary question of a substantial change is a prerequisite to considering the best interests of the child under section 61.13(2)(d).”
For more information, call 561.844.1200 and speak to an attorney with the Law Offices of Nugent & Zborowski about how Florida’s standards relating to modification of custody, timesharing and parental responsibility apply to your situation.
The attorneys of Nugent & Zborowski exclusively handle Divorce & Family Law matters in and around West Palm Beach and Palm Beach County, Florida, and also handle divorce, paternity and modification of alimony and child support cases in the vicinity of Palm Beach, North Palm Beach, Palm Beach Gardens, Royal Palm Beach and Jupiter. For more information call (561) 844-1200 or visit the firm’s website, www.nugentlawfirm.com.
Filed Under Firm News, ModificationFourth DCA Holds Restitution of Support is Possible after a Case is Dismissed for Lack of Jurisdiction
The marital and family law attorneys of Nugent & Zborowski practice all areas of divorce and family law in West Palm Beach, Florida, and also handle divorce, paternity and modification of alimony and child support cases in West Palm Beach and the greater Palm Beach County, Martin County and Broward County area, including divorce, paternity and support cases in the vicinity of Palm Beach, North Palm Beach, Palm Beach Gardens, Royal Palm Beach and Jupiter.
The West Palm Beach divorce and family law attorneys of Nugent & Zborowski recently reviewed Marshall v. Marshall, 35 Fla. L. Weekly D1295 (Fla. 4th DCA June 9, 2010). In Marshall, the appellate court previously reversed a trial court order denying the husband’s motion to dismiss for lack of personal jurisdiction. On remand, the issue was whether the trial court could order the wife to pay restitution to the husband for the support he was previously ordered to pay before the appellate court reversed the order on his motion to dismiss. The trial court declined to order restitution and the husband appealed.
On appeal, the Marshall court again sided with the husband stating: “We find the trial court has the jurisdiction to grant or deny restitution after due consideration. It is clear that the trial court in this matter erred in denying the husband any restitution based on the erroneous belief that the trial court did not have the authority to grant restitution.”
For more information, call 561.844.1200 and speak to an attorney with the Law Offices of Nugent & Zborowski about how Florida’s child support guidelines and alimony and equitable distribution guidelines apply to your situation.
The attorneys of Nugent & Zborowski exclusively handle Divorce & Family Law matters in and around West Palm Beach and Palm Beach County, Florida, and also handle divorce, paternity and modification of alimony and child support cases in the vicinity of Palm Beach, North Palm Beach, Palm Beach Gardens, Royal Palm Beach and Jupiter. For more information call (561) 844-1200 or visit the firm’s website, www.nugentlawfirm.com.
Filed Under Firm News, RestitutionFinding of Income Required when Determining Child Support
The marital and family law attorneys of Nugent & Zborowski practice all areas of divorce and family law in West Palm Beach, Florida, and also handle divorce, paternity and modification of alimony and child support cases in the greater Palm Beach County, Martin County and Broward County area.
The divorce and family law attorneys of Nugent & Zborowski recently reviewed Wilcox v. Munoz, 35 Fla. L. Weekly D1145 (Fla. 2d DCA May 21, 2010). In Wilcox, the trial court failed to include findings of both parties’ incomes in a post-judgment order that decreased the former husband’s child support obligation.
On appeal, the Wilcox court reversed the trial court, finding that: “[i]t is well-settled that a trial court errs by failing to make findings of fact regarding the parties’ incomes when determining child support… This is because findings regarding the parties’ incomes are necessary for a determination of whether the support ordered departed from the guidelines and, if so, whether the departure was justified.”
For more information, call 561.844.1200 and speak to an attorney with the Law Offices of Nugent & Zborowski about how Florida’s child support guidelines apply to your situation.
The attorneys at Nugent & Zborowski exclusively handle Divorce & Family Law matters in and around West Palm Beach and Palm Beach County, Florida. For more information call (561) 844-1200 or visit the firm’s website, www.nugentlawfirm.com.
Filed Under Child Support, Firm NewsFourth DCA Redefines Burden of Proving Passive Appreciation of Marital Assets
The Court of Appeals for the Fourth District of Florida recently affirmed the decision of a trial court that held a husband could not use the S&P 500 as the benchmark to assist in the determination of whether the appreciation of his stock portfolio was marital (and thus subject to equitable distribution) or non-marital. Mathers v. Brown, 21 So. 2d 834 (Fla. 4th DCA 2009).
Generally speaking, the appreciation of a stock portfolio that existed before marriage is “non-marital” and not subject to equitable distribution upon divorce in Florida if the appreciation is “passive” and not attributable to “marital effort.” However, a spouse contending that the appreciation of their stock is non-marital has the burden of proving that the appreciation was due to passive market forces and not marital effort.
Proving that appreciation was due to market forces can be a serious issue when a spouse is a day-trader or hedge fund manager, or otherwise brought a substantial portfolio of assets into their marriage. In the past, courts in these types of cases would typically use the S&P Stock Index as the “benchmark” for passive appreciation; thus, all appreciation over and above the appreciation in the S&P Stock Index would constitute “active appreciation” subject to equitable distribution.
In Mathers, however, the trial court declined to allow a party to use the S&P Stock Index as the benchmark for differentiating between active and passive appreciation. In Mathers, the husband’s stock portfolio appreciated by $2.8 million dollars during the parties four year marriage. At trial, the husband argued that the appreciation of his portfolio over the parties’ marriage should be offset by an amount equal to the appreciation of the S&P Stock Index over the same period. The trial court rejected Husband’s argument and found the entire amount of the appreciation to be a marital asset subject to equitable distribution, finding that:
“[Husband] bought only a few S&P 500 stocks… instead, he bought and sold many foreign stocks and foreign index funds… The Husband made over 700 separate trades during the marital time frame. The S&P 500 Stock Index assumes a buy-hold strategy where stocks are purchased, not sold, and are held for a long period of time. As a result, the Court finds that any index, whether it be the S&P 500 Stock Index, or any other one available for analysis during the term of the parties’ marriage, would be entirely speculative… In light of the foregoing, the Court will not apportion and offset the growth from the Husband’s stock account by any index factor and, as a result, all of said [appreciation] is a marital asset.”
On appeal, the Mathers court affirmed the trial court, finding that Husband failed to meet his burden of establishing any portion of the appreciation in his portfolio was due to passive market conditions. The Mathers court held that:
For more information, call 561.844.1200 and speak to an attorney with the Law Offices of Matthew S. Nugent about how Florida’s equitable distribution laws apply to your situation.
Fifth District Holds that Trial Court is Required to Make Findings Regarding Former Husband’s Present Ability to Pay Child Support and Purge Amount
The Court of Appeals for the Fifth District of Florida recently reversed a ninety day jail sentence imposed on a former husband who failed to pay child support. See Burbage v. Burbage, 34 Fla. L. Weekly D 2598, Case No. 5D08-4102 (Fla. 5th DCA Dec. 18, 2009).
In Burbage, the former husband appealed an order finding him in arrears of his past child support obligation amounting to $4,000, holding that he willfully and deliberately failed to pay the amount to his former wife, and finding him in contempt of court for the order requiring him to pay that amount. The trial court sentenced the former husband to ninety days in jail and set a “purge” amount of $4,000.
On appeal, the Burbage court found no error in the trial court’s findings regarding whether former husband was in contempt; however, the court reversed the trial court’s order because the trial court made no findings regarding the former husband’s present ability to pay child support or comply with the purge payment conditions.
For more information, call 561.844.1200 and speak to an attorney with the Law Offices of Matthew S. Nugent about your alimony or child support enforcement case.
The Law Offices of Matthew S. Nugent exclusively handles Divorce & Family Law matters in and around West Palm Beach and Palm Beach County, Florida. For more information call (561) 844-1200 or visit the firm’s website, www.nugentlawfirm.com.
Filed Under Firm NewsReversal of Order Requiring Husband to Pay Private School Tuition
The Law Offices of Matthew S. Nugent recently obtained the reversal of a provision in a Final Judgment that stood to require a client to pay the entire cost of private school tuition for his three children. See Gelman v. Gelman, 2010 Fla. App. Lexis 23, No. 4D08-3918 (Fla. 4th DCA, Jan. 6, 2010).
In summary, the Fourth District Court of Appeals found that the Final Judgment provision requiring Husband to pay private school tuition was reversible error because Wife failed to request the relief in her pleadings and there was no record evidence that the Husband agreed to pay the tuition. Furthermore, the Gelman court found that trial court failed to make the requisite findings as to whether the Husband had the ability to pay the expenses, or if the private school expenses were in accordance with the family’s customary standard of living and the children’s best interests.
For the full opinion please read below.
We affirm the final judgment, except as to the trial court’s order that Former Husband pay the children’s private school tuition.
The award of a child’s private school expenses is reviewed for abuse of discretion. See Thomas v. Thomas, 776 So. 2d 1092, 1094 (Fla. 5th DCA 2001). “[W]hen an award of relief is not sought by the pleadings, it is reversible error to grant such relief.” McDonald v. McDonald, 732 So. 2d 505, 506 (Fla. 4th DCA 1999). A court may order a noncustodial parent to pay for private educational expenses if it finds that the “parent has the ability to pay for private school” and the “expenses are in accordance with the family’s customary standard of living and are in the child’s best interest.” Wilson v. Wilson, 559 So. 2d 698, 700 (Fla. 1st DCA 1990) (citing Luskin v. Luskin, 492 So. 2d 783, 784 (Fla. 4th DCA 1986)).
Former Husband contends that the trial court improperly ordered him to pay the children’s private school tuition because Former Wife did not plead for the award and the trial court failed to make requisite findings of fact under Wilson. Former [*3] Wife counters that the parenting plan included the financial responsibility to pay the private school tuition and that the trial court incorporated the plan into the final judgment.
Former Wife’s counterpetition did not contain a request for payment of the private school tuition. Moreover, there is no record evidence establishing that Former Husband agreed to pay the tuition. Finally, the court did not make the requisite findings as to whether Former Husband has the ability to pay the tuition, and whether the private school expenses are in accordance with the family’s customary standard of living and are in the children’s best interest. See Wilson, 559 So. 2d at 700 (citing Luskin, 492 So. 2d at 784).
Accordingly, we reverse and remand for further proceedings consistent with this opinion. See McDaniel v. McDaniel, 835 So. 2d 1265, 1268 (Fla. 1st DCA 2003); McDonald, 732 So. 2d at 506.
HAZOURI and DAMOORGIAN, JJ., concur.
Affirmed in part, Reversed in part, and Remanded.
The Law Offices of Matthew S. Nugent exclusively handles Divorce & Family Law matters in and around West Palm Beach and Palm Beach County, Florida. For more information call (561) 844-1200 or visit the firm’s website, www.nugentlawfirm.com.
Filed Under Firm News
Christopher “Chris” Bruce, Esq. has Joined the Law Offices of Matthew S. Nugent
The Law Offices of Matthew S. Nugent is proud to announce that Christopher “Chris” Bruce has joined the firm. Chris’ practice follows the principle focus of the firm and is limited to Marital and Family law matters.
Chris is a native of Palm Beach Gardens, Florida, and a graduate of Palm Beach Gardens High School.
Chris earned an Accounting Degree from the University of Florida, where he was a member of the Alpha Kappa Psi Business Fraternity. While in accounting school, Chris interned in the Tax Department of Ernst & Young, a “Big Four” international accounting firm. Chris was also a licensed Florida insurance agent and intern with Northwestern Mutual, a large-scale financial services company.
Chris graduated, with Honors, from the Florida State University College of Law. While at Florida State, he also earned, with High Honors, an Environmental and Land Use Law Certificate Degree. During law school Chris was President of the Moot Court team, a member of the Journal of Land Use and Environmental Law, and the recipient of five “highest grade” awards.
After graduating law school and being admitted to the Florida Bar, Chris joined the West Palm Beach office of Edwards Angell Palmer & Dodge, a 550 lawyer international law firm and his practice centered primarily around business, employment and probate litigation, tax-increment finance, community redevelopment agencies, and corporate finance matters.
Chris joined the Law Office of Matthew S. Nugent to limit his practice exclusively to marital and family law. Chris continuously strives to provide superior service by utilizing both his legal experience and accounting background to work towards positive, long-term results for his clients.
Filed Under Firm News