Wednesday, March 26, 2014

Florida Psychotherapist Patient Privilege: Protecting Mental Health Records in Divorces and other Family Law Cases

Divorce and family law cases sometimes get ugly.  And, in ugly cases, it is not uncommon for one or both of the parties to have a personality disorder or other mental health condition.  Under certain circumstances, a party's mental health is legitimately relevant to a proper determination of child custody or alimony.  Many times, however, there are improper motivations for seeking confidential mental health records and information.  Your family law attorney should know when this evidence is subject to discovery.

A party to a divorce or family law proceeding normally has the right to prevent disclosure of communications or records made for the purpose of diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction.  See Fla. Stat. § 90.503(2).  This privilege applies to communications between a patient and a psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist.  Id.  The term "psychotherapist" is broadly defined, and includes doctors, psychologists, therapists, social workers, drug and alcohol abuse counselors, and nurse practitioners who are engaged primarily in the diagnosis or treatment of a mental or emotional condition. See Fla. Stat. § 90.503(1)(a).

This psychotherapist-patient privilege, however, is not absolute.  In a child custody dispute, the mental and physical health of both parents is a factor that must be considered by the trial judge in determining the best interests of the children. See Leonard v. Leonard, 673 So. 2d 97, 99 (Fla. 1st DCA 1996).  A party does not waive the psychotherapist-patient privilege merely by seeking child custody. See Leonard, 673 So. 2d at 99.  But, in situations where a calamitous event such as an attempted suicide occurs during a pending custody dispute have courts have found that the mental health of the parent is sufficiently at issue to warrant an exception to the statutory privilege. See, e.g., Miraglia v. Miraglia, 462 So. 2d 507 (Fla. 4th DCA 1984); Critchlow v. Critchlow, 347 So. 2d 453 (Fla. 3d DCA 1977).

In extreme circumstances, evidence concerning the party's mental health is so vital to a proper determination of custody that a patient-litigant exception to the privilege is justified.  Id.  The rationale for this exception is that a litigant waives the psychotherapist-patient privilege by proceeding on a claim for custody where the party's mental condition is an essential element.

Absent a "calamitous event," the law requires courts to preserve the privilege. See, e.g., Koch v. Koch, 961 So. 2d 1134, 1135 (Fla. 4th DCA 2007). Courts will not find a waiver of the privilege based on mere allegations of mental or emotional instability. See Leonard, 673 So. 2d at 99. Competent substantial evidence is required. "To hold otherwise would eviscerate the privilege; a party seeking privileged information would obtain it simply by alleging mental infirmity." Peisach v. Antuna, 539 So. 2d 544, 546 (Fla. 3d DCA 1989).

If evidence of mental health is still necessary in a custody case, the more appropriate method of securing the information is to require an independent psychological or psychiatric examination of the parent or parents. Schouw v. Schouw, 593 So. 2d 1200, 1201 (Fla. 2d DCA 1992). In this way, the trial court balances the need to determine the parents' mental health as it relates to the best interest of the child, and the need to maintain the confidentiality between a treating psychotherapist and the patient.  Id.

Courts have also upheld the psychotherapist-patient privilege when a parent is trying to obtain information or records concerning a child's mental health. See Attorney ad Litem for D.K. v. Parents of D.K., 780 So. 2d 301, 307 (Fla. 4th DCA 2001); see also Kasdaglis v. Dep't of Health, 827 So. 2d 328 (Fla. 4th DCA 2002) (holding that social worker is under no obligation to furnish privileged therapy records of a sixteen year old to the child's mother without the child's consent).  The statutory privilege applies to children, and parents do not have standing to waive the privilege.  See Attorney ad Litem for D.K., 780 So. 2d at 307.   If a child lacks the age or maturity to make a decision concerning the waiver or invocation of the privilege, the court should appoint an attorney ad litem for the child.  Id. at 308.

In Attorney ad Litem for DK, the court explained its reasoning:
We recognize the tension apparent in the law between the rights and responsibilities of parents and the rights of children. Certainly, to promote strong families, parents should be involved and active in the lives of their children, including their health care, for which the parents are held responsible. Unfortunately, sometimes the parents are the cause of abuse, both emotional and physical, of their children. Allowing parents complete access to their children's health care records under all circumstances may inhibit the child from seeking or succeeding in treatment. The tension between the child's need for confidentiality and privacy to promote healing may conflict with the need of the court for information to inform its judgment as to the child's best interest. 
See Attorney ad Litem for D.K., 780 So. 2d at 308.  Courts have also held that even a court appointed guardian ad litem for the child may be excluded from accessing the child's confidential mental health records.

If you have questions about how mental health issues might affect your rights in a family law case, contact an experienced Florida family law attorney.

Equitable Distribution: The Marital Interest in a Non-Marital Property or Premarital Home

As couples marry later in life or have second marriages, one or both of the parties may already own a home. As a result, in many divorce cases, the parties live in a home owned solely by one of the parties.  In these cases, a common question is whether the non-owner spouse has any interest in the home.

Equitable distribution in Florida is governed by section 61.075, Florida Statutes.  When dealing with the division of a couple's assets and liabilities, the first step in the analysis is for the court to set aside any non-marital assets and liabilities.  The court is then tasked with distributing the marital assets and liabilities between the parties, with the premise that such assets and liabilities should be divided equally.

Under section 61.075(6)(a)(1)(b), Florida Statutes, marital assets are defined to include the "enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both."

If marital funds are used to enhance a non-marital asset, the value the enhancement is therefore marital. Accordingly, if the parties built a home on non-marital property, the enhanced value relating to the structure is marital.  The relevant statutory language also clearly provides that, under certain circumstances, the appreciation of a non-marital asset is indeed a marital asset. See Kaaa v. Kaaa, 58 So. 3d 867, 870 (Fla. 2010).  In particular, the passive appreciation of a non-marital asset, such as a home, is properly considered a marital asset where marital funds or the efforts of either party contributed to the appreciation.  Id.  The Florida Supreme Court has held that, if one party uses marital funds to pay the mortgage on a non-marital property and the non-owner spouse makes "contributions" to the property, some portion of the passive appreciation on the home is subject to equitable distribution.  Id. at 871.  

The Florida Supreme Court adopted the following methodology for determining how the appreciated value is properly allocated between the parties:
If a separate asset is unencumbered and no marital funds are used to finance its acquisition, improvement, or maintenance, no portion of its value should ordinarily be included in the marital estate, absent improvements effected by marital labor. If an asset is financed entirely by borrowed money which marital funds repay, the entire asset should be included in the marital estate. In general, in the absence of improvements, the portion of the appreciated value of a separate asset which should be treated as a marital asset will be the same as the fraction calculated by dividing the indebtedness with which the asset was encumbered at the time of the marriage by the value of the asset at the time of the marriage. If, for example, one party brings to the marriage an asset in which he or she has an equity of fifty percent, the other half of which is financed by marital funds, half the appreciated value at the time of the petition for dissolution was filed, § 61.075(5)(a) 2, Fla. Stat. (1993), should be included as a marital asset. The value of this marital asset should be reduced, however, by the unpaid indebtedness marital funds were used to service.
See Kaaa, 58 So. 3d at 872.

Thus, when non-marital real property is encumbered by a mortgage that was paid by marital funds, a pro-rata portion of the passive appreciation in the property's value that accrues during the course of the marriage is a marital asset subject to equitable distribution.

If you have questions concerning your Florida equitable distribution or property division rights, please contact an experienced Tampa family law attorney.

By Richard Mockler

Sunday, March 16, 2014

Florida Alimony and Alimony Reform

Most clients accept that they will have to split their joint assets in a divorce.  But, four issues really seem to strike a nerve in men.  Military divorce clients typically find it very hard to accept that their spouse is going to leave them and take half of the marital portion of the military retirement.  Many fathers cannot understand why mothers still have an upper hand in custody disputes.  And, no one wants to pay their spouse's legal fees.  But, the most controversial part of many divorces is the issue of alimony.

Parties seeking alimony feel that they are entitled to maintain the standard of living achieved during the marriage.  Ironically, in many cases, the standard of living led to the downfall of the marriage in the first place. And, unfortunately, for most couples, it is impossible to maintain two households at the same standard previously achieved in one.  Further, many people have financed their lifestyle by accumulating debt or failing to save.  As couples age, their need for savings becomes more important.  Alimony typically destroys both parties’ ability to save for retirement.

Many clients argue that the party seeking alimony would not need it (or at least not nearly as much of it) if they would just go back to work.  And, where a non-working mother is seeking alimony, it seems that judges are quick to assume that the parties agreed for the wife to stay home with the children.  Even if the husband agreed for her to stop working, the agreement was rarely meant to be “permanent.” Some women choose – against their husband’s wishes – to stay home much longer than their partner ever anticipated.  These women feel it is “necessary” for them to stay home, even after the child has started school.

When the parties cannot agree on how much alimony is appropriate or how the requesting party should receive alimony, the court will have to award alimony pursuant to the standards set forth in section 61.08, Florida Statutes.

Types of Florida Alimony

In a divorce case, the court may grant bridge-the-gap alimony, rehabilitative alimony, durational alimony, permanent alimony, or any combination of these forms of alimony.  In any award of alimony, the court may order periodic payments or payments in lump sum or both.  See Fla. Stat. § 61.08.

Bridge-the-Gap Alimony

Bridge-the-gap alimony is an award of alimony for a set duration of time to assist the party in need with the transition from married life to single life.  This alimony is not subject to modification and may be awarded for up to 2 years.

Rehabilitative Alimony

Rehabilitative alimony is intended to assist a party in achieving the means necessary to support herself after the marriage.  The party seeking rehabilitative alimony must propose a “plan” to the court outlining what she intends to do to increase her earning capability, how the training will help her financially, how long the training will take, and how much the training will cost.  Rehabilitative alimony may be modified or terminated if the wife does not attend the courses as proposed in the rehabilitative plan.

Durational Alimony

Durational alimony was created by the Florida legislature in 2010.  The purpose of durational alimony is to provide periodic support to a spouse for a number of years, not to exceed the duration of the marriage, which is measure from the date or marriage to the date of filing for divorce.  The amount of alimony awarded each month is subject to modification if one of the parties experiences a substantial change of circumstances, including an unanticipated change in need or ability to pay, death of either party, or remarriage of the payee. The duration of the alimony award is not subject to modification, except in exceptional circumstances.

Permanent Periodic Alimony

Permanent period alimony is an award of alimony, typically on a monthly basis, that continues indefinitely. Permanent alimony terminates on the death of either party or upon the remarriage of the recipient. Permanent alimony is also subject to modification if the recipient spouse is in a supportive relationship.  Some parties may be eligible to terminate their alimony obligation upon retirement if there are not sufficient income-producing assets for the retiree to continue paying the alimony.

Lump Sum Alimony

Lump sum alimony is awarded where it is appropriate for the court to award a fixed sum of alimony to one spouse.  This may be appropriate where one party divests himself of the ability to earn income and pay alimony.  It may also be appropriate where one party is ordered to pay off certain marital debts.  Lump sum alimony may be payed in installments but it may not be terminated, even upon death or remarriage.

Florida Alimony Factors

In determining whether to award alimony, section 61.08, Florida Statutes, requires that the court must first make a specific factual determination as to whether either party has an actual need for alimony and whether the other party has the ability to pay alimony.

If the court finds that one party has a need for alimony and that the other party has the ability to pay alimony, then in determining the proper type and amount of alimony, the court must consider all relevant factors, including but not limited to the following:
  1. The standard of living established during the marriage.
  2. The duration of the marriage.
  3. The age and the physical and emotional condition of each party.
  4. The financial resources of each party, including the non-marital and the marital assets and liabilities distributed to each.
  5. The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
  6. The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
  7. The responsibilities each party will have with regard to any minor children they have in common.
  8. The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.
  9. All sources of income available to either party, including income available to either party through investments of any asset held by that party.
  10. Any other factor necessary to do equity and justice between the parties.

Florida Alimony Reform

In 2013, the Florida Legislature passed significant alimony reform laws. To the shock of many,  including those for and against alimony reform, Governor Rick Scott vetoed the legislation.  A letter from Governor Scott made clear that he believed the alimony reform legislation was anti-family, especially certain provisions that would allow courts to modify prior alimony awards.

With 2014 being an election year, the Governor has also made clear that he does not want to reconsider the controversial bill, which could potentially alienate roughly half of Florida voters.  But, we have not seen the last of Florida’s alimony reform movement.  Look for proponents of alimony reform to return next year, especially if Governor Scott wins re-election.

The 2013 alimony reform legislation would have changed how the courts classify short-term, moderate-term, and long-term marriages.  The current alimony statute defines a marriage of less than 7 years as short-term, a marriage of 7 to 17 years as moderate-term, and a marriage lasting 17 years or more as long-term. There is currently a presumption in favor of awarding permanent alimony after long-term marriages, and there is a presumption against permanent alimony after short-term marriages.

The 2013 alimony reform bill also would have changed the marriage classifications as follows:  (a) any marriage lasting less than 11 years would be a short-term marriage, (b) any marriage lasting between 11 and 20 years would be a moderate-term marriage, and (c) only those marriage lasting more than 21 years would be considered long-term.  Significantly, the proposed 2013 legislation would have created a presumption against awarding alimony in short-term marriages.  And, while the bill maintained a presumption in favor of alimony in long-term marriages, it would have eliminated the concept of  permanent periodic alimony.

The 2013 proposed alimony reform also placed significant limits on awards of durational alimony.   Specifically, under current law, durational alimony may be awarded for as many years as the parties were married.  The 2013 alimony reform bill would have presumptively capped durational alimony at half the duration of the marriage.  In other words, a party that was married 14 years could receive alimony for no more than 7 years.  Courts only would have had discretion to exceed this cap in cases where the need is justified by exceptional circumstances.

Under existing alimony law, there are no statutory limits on the amount of alimony that may be awarded, except that the alimony award cannot exceed 50% of the payor's gross income and cannot result in the recipient have significantly more income than the payor.  The 2013 alimony reform would have imposed lower caps on the amount of alimony that could be awarded.  Alimony would have been capped at the following percentages: (a) 25% of the payor's gross income for short-term marriages; (b) 35% of the payor's gross income for moderate-term marriages; and (c) 38% of the payor's gross income in long-term marriages.
There is no guarantee that the same framework will be included in future attempts at alimony reform.  The 2013 alimony reform bill was strongly supported in the legislature.  But, the bill was most likely vetoed due to the controversial provisions that allowed courts to modify past alimony awards.

If you have questions about alimony, cohabitation, termination of alimony, or alimony modifications, please contact an experienced Florida family law attorney.

Thursday, March 13, 2014

Florida Law on Morality, Adultery, Homosexuality, and Child Custody

Under Florida law, Courts are required to make all parenting decisions based on the child's best interests. The Florida legislature has set out 20 factors for courts to consider when establishing a parenting plan or making a parenting or custody determination.  See Fla. Stat. § 61.13(3).

The parenting factors address many issues, such as which parent is more willing to share time, handles more of the parenting responsibilities, acts on the interest of the child, has been caring for the child, demonstrates knowledge of the child's circumstances, provides a consistent routine, communicates with the other parent, avoids violence, and maintains a home free of substance abuse. See Fla. Stat. § 61.13(3).  These considerations are largely non-controversial.

Courts are also required to consider the "moral fitness of the parents."  See Fla. Stat. § 61.13(3)(f).  This factor is extremely subjective, and it does not frequently play a significant role in custody determinations.

For the trial court to consider a parent’s "moral fitness" in connection with establishing a parenting plan or determining parental responsibility, the conduct in question must have a “direct effect or impact” upon the minor child.  See Smith v. Smith, 39 So. 3d 458, 460 (Fla. 2d DCA 2010).  Moreover, the connection between the conduct and the harm to the child must have an evidentiary basis.  See id. (quoting Jacoby v. Jacoby, 763 So.2d 410, 413 (Fla. 2d DCA 2000)); see also Willis v. Willis, 818 So. 2d 530, 533 (Fla. 2d DCA 2002).   “A connection between the actions of the parent and the harm to the child...cannot be assumed.”  See Packard v. Packard, 697 So. 2d 1292, 1293 (Fla. 1st DCA 1997).

In cases where a parent has engaged in adultery, the other parent may argue that the court should consider the adultery when making a determination of time-sharing or parental responsibility.  When adultery is at issue, the act of adultery should not be taken into consideration in determining custody unless the trial court finds that the adultery has a direct bearing on the child’s welfare. See Smith, 39 So. 3d at 461Dinkel v. Dinkel, 322 So. 2d 22, 24 (Fla. 1975)Willis, 818 So. 2d at 533. Marital misconduct is not necessarily an appropriate standard for determining the best interests of the child.  See Farrow v. Farrow, 263 So. 2d 588, 590 (Fla. 2d DCA 1972)McAnespie v. McAnespie, 200 So. 2d 606, 609 (Fla. 2d DCA 1967).  A parent who commits adultery may very well be better suited to parent the child.  See Willis, 818 So. 2d at 533.  “Adultery may or may not have any direct bearing on the welfare of a child of tender years.”  Id.  The mere possibility of a negative impact on the child is not sufficient.  See Willis, 818 So. 2d at 533.

Florida courts have also rejected any notion that the potential for societal disapproval for immoral behavior may be used as a justification for favoring one parent in a custody case.  See Lofton v. Sec’y. of the Dept. of Children and Family Services, 377 F.3d 1275, 1300 (Anderson, J., dissenting from the Denial of Rehearing En Banc) (citing Maradie v. Maradie, 680 So. 2d 538 (Fla. 1st DCA 1996)).

In Maradie v. Maradie, 680 So. 2d 538, 540 (Fla. 1st DCA 1996), the parties presented considerable testimony about the sexual conduct of each parent and its relation to the parent's "moral fitness" under section 61.13(3)(f), Florida Statutes.  Among other things, the former husband presented evidence that his former wife was bisexual and had been involved in lesbian relationships.  Id.  The court-appointed psychologist testified, however, that there was no evidence that the former wife's sexual orientation impaired her parenting ability or had negatively impacted the child.  Id.  Nevertheless, the trial court awarded custody of the parties' daughter to the former husband.  Id.  The trial court based its decision on the following reasoning:
The testimony reveals that Mrs. Maradie, with her homosexual lover, spend nights and sleep together in the same bed, kiss, hold hands and speak in terms of endearment in front of the child. The possibility of negative impact on the child, especially as she grows older and reaches her late pre-teen and early teen years, is considerable.  The Court does not have to have expert evidence to reach this conclusion, but can take judicial notice that a homosexual environment is not a traditional home environment, and can adversely affect a child. To say that this cannot be considered until there is actual proof that it has occurred is asking the Court to abdicate its common sense and responsible decision-making endeavors.
Maradie, 680 So. 2d at 540-41.  Florida's First District Court of Appeal explained that the trial court was permitted to consider a parent's sexual conduct in determining the parent's moral fitness under section 61.13(3)(f).  The trial court, however, was required to focus on whether the parent's behavior had a direct impact on the welfare of the child.  Id. at 541.  The trial court certainly was not permitted to take "judicial notice" of the "fact" that a homosexual environment is not traditional and can adversely affect a child.  Id.  Accordingly, the First District Court of Appeal reversed the trial court's decision to award custody to the former husband and its decision to take "judicial notice" that being raised in the presence of homosexuality can adversely affect a child.  Id.

In Ward v. Ward, 742 So. 2d 250, 254 (Fla. 1st DCA 1996), Florida's First District Court of Appeal again clarified that the sexual orientation of the custodial parent does not, by itself, justify a custody change.  In Ward, the trial court changed custody from the former wife, who was a lesbian, to the former husband, who was previously convicted of second degree murder for killing his first wife.  Id. at 252.  On appeal, Florida's First District Court of Appeal found that the trial court was not focused on the fact that the former wife was a lesbian, but rather on the best interests of the child.  Id.  The trial court concluded that the former wife was involved in a relationship that directly and adversely affected the child.  Id. at 254.  The First District Court of Appeal held that the trial court did not abuse its discretion by changing custody because the determination was without regard to the sexual orientation of that relationship.  Id.

In Packard v. Packard, 697 So. 2d 1292, 1293 (Fla. 1st DCA 1997), the trial court awarded custody to the former husband where the wife was a lesbian living with a woman who was previously involved in a menage a trois with the parties during their marriage.  Id.  Remarkably, at the time of the divorce, the former husband was living with his new girlfriend, her children, and the parties' daughters.  On appeal, the former wife argued that the trial court based its custody decision solely on her sexual orientation.  Id.  The former husband's living arrangements were also fairly viewed as "untraditional."  Id.  The former wife argued that it was therefore discriminatory for the trial court to base its custody determination on the finding that a more "traditional family environment" would be provided by the former husband.  Id.  Florida's First District Court of Appeal again explained that the trial court may consider a parent's sexual conduct in determining the parent's moral fitness under section 61.13(3)(f), Florida Statutes, but that in such consideration "the trial court should focus on whether the parent's behavior has a direct impact on the welfare of the child."  Id.  In other words, the trial court's primary consideration must be on the conduct involved and whether the conduct has had or is reasonably likely to have an adverse impact on the child, as opposed to weighing which household was more or less "traditional."  Id.  The Court of Appeal reversed the trial court's custody determination and remanded the case with instructions to follow the foregoing principles when considering the parties' moral fitness.  Id.

In Jacoby v. Jacoby, 763 So. 2d 410 (Fla. 2d DCA 2000), the former husband's case was centered largely on attacking the former wife based on her sexual orientation.  The trial court made remarks about the negative impact of the mother's  sexual orientation on the children.  Id. at 413.  The Second District Court of Appeal found that the trial court's negative comments were conclusory and unsupported by the evidence.  Id. Specifically, the trial court found that "the community" shared the former husband's belief that homosexuals are immoral and should not be entrusted to rear children.  Id.  The trial court further found that a "strong stigma" attaches to homosexuality and that while being reared in a homosexual environment does not appear to alter sexual preference, it does affect social interaction and that it is likely that the children's peers or their parents will have negative words or thoughts.  Id.  The Second District Court of Appeal, however, found that even if the trial court's comments about the community's beliefs and possible reactions were correct and supported by the evidence, "the law cannot give effect to private biases."  Id.  With respect to the custody decision, the Second District further reasoned that "even if the law were to permit consideration of the biases of others, and even if we were to accept the assumption that such would necessarily harm the children, the bias and ensuing harm would flow not from the fact that the children were living with a homosexual mother, but from the fact that she is a homosexual."  Id.  The Second District Court of Appeal held that the trial court's "reliance on perceived biases was an improper basis for a residential custody determination."  Id.  The trial court also improperly concluded that the children's exposure to the Baptist religion coupled with living with a homosexual parent would necessarily create confusion for the children.  Id. at 414.  The lower court also made a number of other leaping conclusions in support of its decision to award custody to the heterosexual father.  Id. at 414-15.  None of these jumps to conclusion were supported by the evidence, and the Second District Court of Appeal reversed the trial court's decision.  Id. at 414-15.  In short, when making its custody determination, the trial court impermissibly penalized the mother for her sexual orientation without evidence that it harmed the children.  Id. at 415.

All of these decisions by the Florida courts make clear that homosexuality alone cannot be the basis for an adverse custody decision.  The trial court must link any allegedly "immoral behavior" to a direct affect on the minor child.  That connection must be supported by evidence in the record.  The link cannot be the product of speculation or "judicial notice."  In other words, before a court can make any judgment concerning a party's homosexual or other allegedly "immoral" conduct, the court must be prepared to explain how the conduct at issue directly impacted the minor child.

If you have questions about child custody issues in Florida, please contact an experienced Florida family law attorney.

Friday, March 7, 2014

Can a Florida Court Extend Child Support Beyond Age 18?

The duty to provide support for a minor child is based upon the child's incapacity, both natural and legal, and the child's need of protection and care.  See Kern v. Kern, 360 So.2d 482, 484 (Fla. 4th DCA 1978).

Court have recognized that a parent's legal duty to support his children ordinarily ceases at the age of majority.  Perla v. Perla, 58 So. 2d 689, 690 (Fla. 1952).  A parent, however, owes a duty of support to an adult child in extraordinary circumstances, such as when the child suffers severe physical or mental incapacitation.  See Kern v. Kern, 360 So. 2d 482, 486 (Fla. 4th DCA 1978).

In 1973, the Florida legislature lowered the age of majority from 21 to 18.   See Fla. Stat. § 743.07.    More recently, the Florida child support statute was modified to require all family law judgments awarding child support to include the following provisions:
  1. That the child support for each child will terminate on the child’s 18th birthday unless the court finds that section 743.07(2) applies, or is otherwise agreed to by the parties; 
  2. A schedule stating the amount of the monthly child support obligation for all the minor children and the amount of child support that will be owed for any remaining children after one or more of the children are no longer entitled to support; and 
  3. The date that the reduction or termination of child support becomes effective. 
See Fla. Stat. § 61.13(1)(a).

In other words, section 61.13, Florida Statutes, requires that a payor's child support obligation automatically adjusts downward as each child reaches his or her 18th birthday.

The Florida legislature has also codified when a support obligation may be extended beyond 18 years of age. Specifically, section 743.07, Florida Statutes, states that child support may be extended beyond age 18 in two situations: (a) where a child is dependent due to mental or physical incapacity that began prior to age 18; and (b) where a child has reached the age of majority, is living at home, attending high school, and reasonably expects to graduate high school before age 19.  This language was added to the statute effective October 1, 1988.  See Penton v. Penton, 564 So. 2d 1114, 1115 (Fla. 1st DCA 1990).  Courts have recognized that these two situations are separate bases to extend child support beyond age 18.  See Miller v. Smart, 636 So. 2d 836, 837 (Fla. 5th DCA 1994).

The difficult question is under what circumstances might a mental or physical incapacity justify an extension of child support?  The statutory uses the word "dependent."  Obviously, the word dependent suggests that a parent will not owe support if the child is out working and self-supporting.  The answer is less clear where a child is moderately incapacitated and living at home.  A troubling example might be a child living at home and suffering from a mild physical disability or a moderate psychological disorder.   In Kern v. Kern, 360 So. 2d 482, 486 (Fla. 4th DCA 1978), Florida Fourth District Court of Appeal held that a dependent child must suffer from a "severe physical or mental incapacity."

Decisions subsequent to Kern that discuss whether an adult child is "dependent" within the meaning of section 743.07, Florida Statutes, have not used the words "suffering" or "severe" when describing the child's mental or physical incapacity.  See, e.g., Carres v. Good-Earnest, 838 So. 2d 577 (Fla. 4th DCA 2002)Miller v. Smart, 636 So. 2d 836, 837 (Fla. 5th DCA 1994).

In Penton v. Penton, 564 So. 2d 1114 (Fla. 1st DCA 1990), the court awarded child support beyond the age of majority due to the child's mental and emotional condition.  In Penton, the parties' son was a sophomore in high school at the time of the divorce. The first district concluded that the son suffered "psychological infirmities" due to the stress stemming from the divorce and was being treated by a mental health professional. The child's emotional condition constituted a dependency, which, when coupled with his economic incapacity, was sufficient to require support beyond the age of majority.

In Pitts v. Pitts, 566 So. 2d 12, 13 (Fla. 2d DCA 1990), the parties' child suffered from learning disabilities, which required him to devote most of his time to his studies.  The court found that the child could not work to support himself while he was in school due to his learning disability.  This decision is noteworthy because the child's disability appeared relatively modest.

Regardless of whether the physical or mental incapacity is "severe," under section 743.07, Florida Statutes, the incapacity must result in the child's "dependency."  Some practitioners and judges may equate "dependency" with "disability."  And, this would be a fair analogy given that the child must suffer from an incapacity that rises to the level of dependency.  Finally, the incapacity - whatever it might be - must have rendered the child dependent prior to his or her attaining the age of majority.  Any supplemental petition to extend child support must be filed before the support obligation terminates.

Thursday, March 6, 2014

What is the Deadline for Filing a Motion for Rehearing or New Trial under the Florida Rules of Civil Procedure?

When you practice law for a long time, you get comfortable with the rules.  Many attorneys do not consult their rule books frequently.  Some lawyers don't buy a new copy of the Florida Rules of Civil Procedure.

When the rules of procedure change, there is typically little fanfare.  The Florida Supreme Court amends the rules by publishing an opinion of the court.  On certain occasions, such as the implementation of new rules concerning electronic discovery, the implementation of email service, or the advent of electronic filing, there are articles, updates, or talk among lawyers.

One of the most rigid deadlines in the law is the deadline for filing a motion for rehearing or new trial.  See, e.g., Migliore v. Migliore, 717 So. 2d 1077 (Fla. 4th DCA 1998) (holding that that the attorney missed the deadline where he timely filed the motion but the postmark suggested that it was actually served after the 10-day deadline).  This deadline is also important because filing a timely motion for rehearing or new trial also tolls the deadline for filing a notice of appeal.

On January 1, 2014, Florida Rule of Civil Procedure 1.530 was amended to extend the time for seeking rehearing or a new trial.  The deadline for serving the motion was increased from 10 days to 15 days.  This is a very significant move, as the deadline had been 10 days since the rule was first adopted.  And, the time limit in this rule had been relatively short and not subject to extension.

The Florida Family Law Rules of Procedure were also amended to incorporate Rule 1.530's new 15-day deadlines.

For an interesting discussion regarding the difference between a motion for rehearing and a motion for reconsideration, please look at this Florida Bar article.

When Can A Witness Appear by Phone or Video in a Florida Court Hearing?

Historically, Florida law has allowed a party or witness to testify by phone or video conference only when the parties agreed.  Florida Rule of Judicial Administration 2.530(d)(1) provides that a "county or circuit court judge may, if all the parties consent, allow testimony to be taken through communication equipment."  

Case law interpreting this rule held that, under Florida Rule of Judicial Administration 2.530(d)(1), a trial court's only has discretion to allow testimony to be taken over the phone if all of the parties consent.  See Cole v. Cole, 86 So. 3d 1175 (Fla. 5th DCA 2012).  If the judge allowed a party to testify by phone over the objection of another party, the trial court committed error.   See Cole, 86 So. 3d at 1176 (citing S.A. v. Dep't of Children and Family Servs., 961 So. 2d 1066, 1067 (Fla. 3d DCA 2007)).  Although many judges thought that they had some discretion to allow telephonic appearances under the Rules of Judicial Administration, there was simply no such discretion.  See M.S. v. Dep't of Children and Families, 6 So. 3d 102, 103 (Fla. 4th DCA 2009).

In civil cases, the Florida Supreme Court recently changed the law governing witness testimony via telephone and video.  Florida Rule of Civil Procedure 1.451, titled Taking Testimony, is effective January 1, 2014.

The general rule remains that, when testifying at a hearing or trial, "a witness must be physically present unless otherwise provided by law or rule of procedure."  See Fla. R. Civ. P. 1.451(a).

Under Rule 1.451(b), however, the court may permit a witness to testify at a hearing or trial by contemporaneous audio or video communication equipment (i) by agreement of the parties or (ii) for good cause shown upon written request of a party.  The written request must give reasonable advance notice.  The request must also contain "the substance of the proposed testimony and an estimate of the length of the proposed testimony."  In considering sufficient good cause, the court must weigh and address in its order the reasons stated for testimony by communication equipment against the potential for prejudice to the objecting party.

For purposes of Rule 1.451, the term "communication equipment" means a conference telephone or other electronic device that permits all those appearing or participating to hear and speak to each other simultaneously and permits all conversations of all parties to be audible to all persons present. Contemporaneous video communications equipment must make the witness visible to all participants during the testimony.  For testimony by any of the foregoing means, there must be appropriate safeguards for the court to maintain sufficient control over the equipment and the transmission of the testimony so the court may stop the communication to accommodate objection or prevent prejudice.  See Fla. R. Civ. P. 1.451(c).

Florida Rule of Civil Procedure 1.451 does not relax the traditional "notary requirement" for telephonic or video testimony.  Testimony may be taken over the phone or by video only if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction.

According to the committee notes for Florida Rule of Civil Procedure 1.451, in determining whether good cause exists, the trial court may consider the following factors:
  • The type and stage of proceeding, 
  • The presence or absence of constitutionally protected rights, 
  • The importance of the testimony to the resolution of the case, 
  • The amount in controversy in the case, 
  • The relative cost or inconvenience of requiring the presence of the witness in court, 
  • The ability of counsel to use necessary exhibits or demonstrative aids, 
  • The limitations (if any) placed on the opportunity for opposing counsel and the finder of fact to observe the witness’s demeanor;
  • The potential for unfair surprise;
  • The witness’s affiliation with one or more parties, and 
  • Any other factors the court reasonably deems material to weighing the justification the requesting party has offered in support of the request to allow a witness to testify by communications equipment against the potential for prejudice to the objecting party. 
If the factors weigh against audio testimony, the court should consider the cost and availability of contemporaneous video testimony as an alternative to permitting audio testimony.  In other words, with the advance of technology, video is widely available and may be a preferable medium for permitting testimony.

Notably, the Florida Family Law Rules of Procedure do not presently include a counterpart to Rule 1.451.  In other words, the Family Law Rules do not provide the same discretion allowed in civil cases.  This may cause confusion among family law parties, practitioners, and judges.  While telephonic and video testimony will presumably become more common in civil cases, these advances in technology were not initially adopted by the Family Law Rules Committee.  The Family Law Rules committee acknowledged in its January 2014 meeting that this inconsistency between the civil rules and the family rules was likely to create confusion.  As a result, the Family Law Rules Committee voted unanimously to send proposed Rule 12.451 of the Family Law Rules of Procedure to the Florida Supreme Court.  The proposed rule may be sent to the Florida Supreme Court as an out-of-cycle amendment.

Until Family Law Rule of Procedure 12.451 is adopted, family law cases are still governed by the Rules of Judicial Administration.

Under Rule 2.530 of the Florida Rules of Judicial Administration, a judge may, upon the court’s own motion or upon the written request of a party, direct that communication equipment be used for a motion hearing, pretrial conference, or a status conference. A judge must give notice to the parties and consider any objections they may have to the use of communication equipment before directing that communication equipment be used.  Subject to certain exceptions, the trial judge has discretion when deciding whether to allow a party to appear by phone or video. 

Rule 2.530 mandates that telephonic appearances be allowed under certain circumstances.  When the hearing is set for 15 minutes or less and a party gives reasonable notice and makes a written request to appear by phone or video, the judge must grant the request absent a showing of good cause to deny the same. 

With respect to testimony at a longer hearing, Rule 2.530 provides that a county or circuit court judge, general magistrate, special magistrate, or hearing officer may allow the testimony to be taken through communication equipment if all parties consent or if permitted by another applicable rule of procedure. 

A party seeking to present testimony by phone or video must, prior to the hearing or trial at which the testimony is to be presented, contact all parties to determine whether each party consents to this form of testimony.  The party seeking to present the testimony shall move for permission to present testimony through communication equipment, which motion shall set forth good cause as to why the testimony should be allowed in this form. 

Testimony may only be taken by phone or video if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction.  Many practitioners still fail to have a notary present when their witness is appearing via phone or video.  

If the testimony to be presented utilizes video conferencing or comparable two-way visual capabilities, the court in its discretion may modify the procedures set forth in this rule to accommodate the technology utilized. 

If you have questions about presenting your case in family court, please contact an experienced Florida family law attorney.