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.

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.

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.

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.

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.

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.

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.

This week The Law Offices of Matthew S. Nugent obtained a reversal of a temporary relief order in the matter of Bengisu v. Bengisu, No. 4D08-5117.

In summary, the District Court of Appeal of the State of Florida, Fourth District of Florida reversed the trial court’s order, holding, it was an abuse of discretion to award monthly support which greatly exceeded the husband’s monthly income without competent substantial evidence that the husband’s acutal monthly income exceeded his stated monthly income. The Court further held, the trial court failed to make specific findings indicating the source and amount of the husband’s imputed income.

For the full opinion please read below.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

Appellant,

v.

Appellee.

No. 4D08-5117

[June 3, 2009]

POLEN, J.

Appellant, Dogan Bengisu, appeals the trial court’s non-final order awarding his wife and Appellee, Renee Bengisu temporary child support and alimony. Husband and wife were married in 1997 and have two children, born in 1998 and 2001. On May 30, 2008, wife filed a petitionfor dissolution of marriage with minor children.

On September 9, 2008, wife filed a motion for temporary relief seeking shared parental responsibility, designation as the primary residential parent, temporary periodic alimony, temporary exclusive use and possession of the marital residence, child support, the maintenance ofher and the children’s health and dental insurance, and attorney’s fees. The trial court held an initial hearing on wife’s motion on November 19,2008 and continued that hearing on December 12, 2008.

Prior to the second hearing, husband filed a motion for temporary relief on December 8, 2008 seeking open and liberal timesharing with the children pursuant to the Model Timesharing Schedule for Parents Who Reside No More than 45 Miles Apart, contribution to the children’s support from wife, imputed income for the wife, the transfer to husband of $10,000 of the $20,000 withdrawn from the home equity line of credit by wife, and a monthly payment of the fair rental value of the marital residence. Husband also filed a Proposed Temporary Parental Responsibility and Temporary Timesharing Schedule. Husband’s motion or temporary relief was heard in conjunction with wife’s motion on December 12, 2008.

Wife’s financial affidavit stated that she was unemployed and claimed total monthly expenses of $11,898.00. The affidavit also listed her net worth as $744,123.00. Husband’s financial affidavit stated that he was a lawyer employed as a solo practitioner, that his office had just reopened after being closed for four months, and that his pay was based on the income of his office. Husband listed gross monthly income of $3031.00, net monthly income of $2585.00, total monthly expenses of $4886.58, and a monthly deficit of $2720.29. Finally, husband listed a net worth of $322,230.00.

Both wife and husband listed a home equity line of credit on their affidavits. Husband’s affidavit indicated that the home equity line of credit balance was $47,659.21 and that he made a monthly payment of $476.59. Wife testified that she had withdrawn $20,000 from the home equity line of credit which she had spent on household expenses, caring for the children, legal fees and paying her accountant.

Wife testified that her household had around $12,600 in monthly expenses, that throughout the marriage husband was responsible for all of the expenses, that bills had never been left unpaid, and that she did not believe the couple had ever accrued any debt to cover their monthly obligations. Wife testified that during the marriage, she was never clear how much husband was earning. Wife stated that husband left his solo practice to work for a law firm for four months leading up to the divorce and, while there, his salary was $85,000.

Wife’s accountant, William Mitchell, testified that he had been retained by wife to ascertain whether the discovery responses provided by husband were accurate but that he was not a certified forensic accountant. Mitchell testified that based on his review of wife’s financial affidavit a n d household expenses, he believed she needed $5,500 undifferentiated monthly support during the pendency of the divorce. Mitchell explained that husband’s 2006 and 2007 tax returns stated income of $42,505 and $48,115, respectively but that he did not believe the returns accurately reflected husband’s income for those two years.

Husband testified that his law practice had a gross annual income of between $70,000 and $80,000 and had net income of between $25,000 and $42,000. Husband stated that his big client, who represented two thirds of his monthly income, died in 2005 after which his income had significantly decreased. Husband stated that the family accrued $3,000-$5,000 of debt per year, that his clients did not pay him in cash, and that his $85,000 salary while at the law firm just before the divorce was the highest salary he had earned in his life. Despite listing a monthly deficit of $2,270, husband only had $6,750 in credit card debt, $5,000 of which was spent on wife’s attorney’s fees. Husband explained that his parents had helped them with their expenses in previous years, that they were currently unable to help them, and that he had an additional $6,000 of credit card debt which he had neglected to list on his affidavit.

Husband’s forensic accountant, Alan Wagner, testified that husband’s current gross monthly income from all sources was $3,221.00 which was similar to his historical income. Wagner stated that husband ran a oneman law office and that he had reviewed husband’s business ledgers,bank accounts, and cancelled checks in reaching his determinations. Wagner explained that there was no indication that any of husband’s clients paid him in cash, that all of his current clients were businesses, and that businesses typically paid all of their expenses by check. Husband had been paying the entire first mortgage and home equity line of credit on his own but within the two months prior to the hearing had been unable to afford the home equity line of credit payments.

The parties both informed the court that they had agreed to husband’s proposed timesharing schedule. In its order awarding wife temporary support, the trial court found:

During the history of the intact marriage, the Husband was exclusively responsible for the payment of all the parties’ individual and household expenses. The Court finds he isunderemployed based upon his historical earnings. Further the Court was persuaded by the evidence the parties had historically paid their ongoing monthly expenses without accruing debt.

Thus, the court entered an order requiring the parents to use the Model Parental Timesharing Schedule for Parents Who Live within 45 Miles of Each Other when they do not otherwise agree, ordering husband to continue paying the mortgage, taxes, and insurance for the marital residence, allowing wife to continue to exercise exclusive use and possession of the marital residence, awarding wife undifferentiated support in the amount of $5,500 per month, requiring husband to pay wife’s attorney’s fees, and requiring husband to maintain the family’s major medical insurance coverage. The court also permitted each party to use $10,000 of the remaining $20,000 home equity line of credit.1

Husband now timely appeals.

Husband argues that the trial court erred in awarding wife temporary alimony and child support in the amount of $5,500 per month because the award exceeds his monthly income, the court made no findings as to husband’s monthly net income, and the court lacked competent substantial evidence to impute additional income to husband. Wife replies that there was n o error because the evidence showed that husband was not reporting all of his income and that her monthly expenses required an award of $5,500 undifferentiated monthly support. “[T]emporary relief awards are among the areas where trial judges have the very broadest discretion, which appellate courts are very reluctant to interfere with except under the most compelling of circumstances.” Pedraja v. Garcia, 667 So. 2d 461, 462 (Fla. 4 t h DCA 1996). In determining whether and to what extent temporary alimony is required, the trial court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to pay alimony. Stern v. Stern, 907 So. 2d 701, 702 (Fla. 4th DCA 2005). Finally, both the requesting spouse’s need and the other spouse’s ability to pay must be supported by competent, substantial evidence. Driscoll v. Driscoll, 915 So. 2d 771, 773 (Fla. 2d DCA 2005).

There was evidence below that husband had historically paid the couple’s monthly expenses without accruing debt, and the trial court found, accordingly, that husband was underemployed and should continue to be responsible for the monthly expenses of the family. However, there was also evidence that the couple’s parents had helped them financially in the past, were unable to continue helping them, and that husband had recently reestablished his solo law practice. Wife’s accountant stated that he believed husband’s actual income exceeded his stated income, and husband’s accountant testified that he believed husband’s stated income was accurate.

Husband’s financial affidavit reflects a monthly deficit of nearly $3,000, and the trial court awarded wife undifferentiated support in the amount of $5,500. Despite evidence that husband had historically made sufficient income to pay the family’s expenses, the trial court abused its discretion in awarding monthly support which greatly exceeds husband’s monthly income without competent substantial evidence that husband’s actual monthly income exceeds his stated monthly income.

Moreover, the trial court failed to make specific findings indicating the source and amount of husband’s imputed income. Schram v. Schram, 932 So. 2d 245, 249 (Fla. 4th DCA 2005) (“When imputing income to a party, the trial court must set forth factual findings as to the probable and potential earnings level, source of imputed and actual income, and adjustments to income.”). Therefore, we reverse and remand for the trial court to make the necessary findings based on competent substantial evidence of husband’s income and to award an appropriate amount of temporary support based on those findings. Whether additional testimony and evidence is required or whether the current record contains sufficient evidence, we leave for the trial court to determine.

1 Here, the trial court’s order ignores the fact that the home equity line of credit does not have $20,000 remaining. The credit line was for $50,000 and husband’s affidavit and testimony reveal that the current balance is $47,659.21.

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