Proceeds From Sale Of Marital Home Sold As Part Of Divorce Subject To Homestead Protection

In Kerzner v. Kerzner (3D10-3124), the Third District affirmed "an order and final judgment which determined that proceeds from the sale of a marital home, pursuant to the terms of a marital settlement agreement, were subject to homestead protection under the Florida Constitution."

Test To Apply When Party Seeking DNA In Paternity/Probate Dispute

In Doe v. SunTrust Bank, et al (2D08-1239), the Second District granted a petition for certiorari and reversed a trial court order that required the petitioners submit to DNA testing.  The court concluded the movant below failed to comply with the requirement of rule 1.360 that "the movant must make an affirmative showing that the 'condition as to which the examination is sought is really and genuinely in controversy' and that good cause exists for ordering the examination."  Judge Kelly wrote the opinion and Judge Altenbernd concurred.  Judge Silberman concurred in part and dissented in part.  After quashing the order below, the majority stated:

Because it seems likely that Madelin will again attempt to obtain discovery to assist her in establishing that she is a beneficiary of Doe's trusts, and because a request to test the relatives of a deceased putative father in the context of an action to determine the beneficiaries of a trust presents some unique issues, we believe it is appropriate to offer the parties and the court some guidance should this issue arise again.

First, we note that the issue of whether Madelin is Doe's child, and thus a beneficiary of his trusts, is clearly at the heart of this litigation. However, thus far, it appears that the only pleadings suggesting she may be his child are the Trustee's verified complaint, which simply attests to the Trustee's knowledge that Madelin claims to be Doe's child and her verified motion to compel testing which states only that she "maintains she is a child born out of wedlock" to Doe. We believe something more is required, for example, an affidavit from Madelin's mother alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact with Doe.  See § 742.12(2) (requiring a sworn statement or declaration under penalty of perjury alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties as a perquisite to obtaining an order for scientific testing). Such an affidavit would satisfy the requirement that the subject matter of the test be "really and genuinely" in controversy. See Schlagenhauf, 379 U.S. at 119. 

Madelin will also have to demonstrate "good cause" for her request that Adrian and Evelyn be required to provide a buccal swab sample for testing. In the typical paternity action, a compelled DNA test is dispositive of the issue in controversy, and thus good cause for the test is established. See Wicky, 34 Fla. L. Weekly at D1613. This case is not, however, a typical paternity case because it is the legitimate children of the deceased putative father who are being asked to submit a sample of their DNA for testing. Under these circumstances, we believe two considerations are important in determining the existence of good cause. First, it would seem appropriate that Madelin provide some evidence that a comparison of her DNA with the DNA of Doe's legitimate children could produce a result that would tend to prove or disprove the existence of a genetic link between Doe and Madelin. Second, it would also seem appropriate to require that she make some showing of need. For example, in the arguments presented to this court, Madelin and the Trustee have indicated that Doe was cremated, thus eliminating the possibility of any comparison with a sample derived from his remains. As far as we can tell, this fact was not presented as evidence in the trial court. Likewise, while the Trustee's verified complaint suggests that no official documentation exists that would allow Madelin to establish that Doe is her father, it seems reasonable to require a more definitive statement to that effect, perhaps from Madelin's guardian ad litem.

Finally, as we explained in Wicky, in all discovery matters the competing interests of the parties must be balanced. 34 Fla. L. Weekly at D1613. Doe did not name specific beneficiaries in his trusts; instead he instructed that the assets in the trusts be divided among his children. Other language in the trusts indicates he contemplated the possibility of having children other than Adrian and Evelyn. Given that this is an action to determine the beneficiaries of his trusts, consideration should be given to effectuating his intent as expressed in the trusts. As for Madelin, if she is in fact Doe's child, her rights with respect to the trusts are equal to those of Evelyn and Adrian. Further, her interests are akin to those of an out of wedlock child seeking to share in the intestate estate of a parent. Florida recognizes the right of an out-ofwedlock child to share in a parent's estate. See § 732.108(2). Florida also recognizes the right of a child born out of wedlock to establish paternity after the death of the father.  See § 732.108(2)(b). For that right to be meaningful, the child must have a fair opportunity to prove that the deceased is her father. What is fair may vary from case to case, but any evaluation should take into account the heightened burden of proof imposed on out-of-wedlock children who seek to establish paternity after the death of the putative father. See Berkey v. Odom (In re Estate of Odom), 397 So. 2d 420 (Fla. 2d DCA 1981) (holding that in an action to establish paternity after the death of the father, proof of paternity shall be by clear and convincing evidence), disapproved on other grounds, Wilson v. Scruggs (In re Estate of Smith), 685 So. 2d 1206 (Fla. 1996). 

On the other hand, Adrian and Evelyn have a privacy interest they seek to protect. In considering the weight to afford that interest, several factors are important. First, the intrusion is minimal—the test Madelin seeks is noninvasive, and the purpose of the test is limited to comparing her DNA to theirs. Second, rule 1.360(a)(3) provides that the court, upon request, may establish protective rules governing an examination. Thus far, Adrian and Evelyn have only asserted a generalized complaint that submitting a DNA sample invades their privacy, however, if they are able to articulate any specific privacy concern, they have the ability to ask the court to fashion protective rules to address that concern. Third, Adrian and Evelyn have affirmatively denied that Madelin is Doe's child, and they have actively opposed all efforts by her or Maria to prove that they are his children. Having taken that position, it is questionable whether they should be permitted to withhold the evidence that may put Madelin's claim and their defense to rest once and for all. They have the alternative of conceding that Madelin is a beneficiary should they wish to avoid the test.

Decision Relating To Parental Relocation Of Child Entails A Best Interest Determination At Time Of Hearing - Florida Supreme Court

In Arthur v. Arthur (SC08-1675), the Florida Supreme Court quahsed a decision of the Second District relating to parental relocation of a child and section 61.13001, Florida Statutes (2006). 

Upon review of the Husband's arguments and the well-reasoned analyses in the First District's opinions in Martinez, Janousek, and Sylvester, we conclude that a best interests determination in petitions for relocation must be made at the time of the final hearing and must be supported by competent, substantial evidence. In this case, the trial court authorized the relocation based in part on its conclusion that relocation would be in the best interests of the child twenty months from the date of the hearing. Such a “prospective-based” analysis is unsound. Indeed, a trial court is not equipped with a “crystal ball” that enables it to prophetically determine whether future relocation is in the best interests of a child. Any one of the various factors outlined in section 61.13001(7) that the trial court is required to consider, such as the financial stability of a parent or the suitability of the new location for the child, could change within the extended time period given by the court before relocation. Because trial courts are unable to predict whether a change in any of the statutory factors will occur, the proper review of a petition for relocation entails a best interests determination at the time of the final hearing, i.e. a “present-based” analysis.

*Disclaimer: GrayRobinson, P.A. was involved in this action.

Fourth District Chief Judge Gross Suggests Court Will Recede From Chapman v. Chapman & O’Neill v. O’Neill

In Mathers v. Brown (4D08-1470), the Fourth District denied a motion for rehearing and rehearing en banc of THIS opinion released on September 9, 2009.  Chief Judge Gross wrote a concurring opinion stating:

Appellant’s motion for rehearing en banc was directed at the issue of prejudgment interest. In the proper case, when the issue is before us, this court should recede en banc from Chapman v. Chapman, 866 So. 2d 118 (Fla. 4th DCA 2004), and O’Neill v. O’Neill, 868 So. 2d 3 (Fla. 4th DCA 2004). Read together, these cases hold that the appreciation in the value of a non-marital brokerage account during a marriage is a marital asset to the extent that it exceeds the passive appreciation in the brokerage account as measured by an appropriate stock index. These cases have gone beyond the language of the statute to create complexity where a spouse brings assets to a marriage.

Unlicensed Marriage Not Invalid In Florida According To First District

In Hall v. Maal (08-4776), the First District held that an unlicensed marriage is not invalid in the state of Florida.

The procedures for contracting a valid marriage in Florida are regulated by Chapter 741, Florida Statutes....The Legislature does not, however, expressly state anywhere in Chapter 741 that marriages conducted without a license are invalid or prohibited. In contrast, same-sex and incestuous marriages are prohibited. §§ 741.21, 741.212, Fla. Stat. (2002).

***

As noted above, common-law marriages are void. § 741.211, Fla. Stat. (2002). A common-law marriage is defined as “[a] marriage that takes legal effect, without license or ceremony, when a couple live together as husband and wife, intend to be married, and hold themselves out to others as a married couple.” Lowe v. Broward County, 766 So. 2d 1199, 1210-1211 (Fla. 4th DCA 2000) (citing Black’s Law Dictionary, 986 (7th ed. 1999)). Under the facts of this case, the parties’ relationship was not a common-law marriage; rather, in light of the wedding ceremony, it was an unlicensed marriage.

***

It is clear that the Legislature has prohibited and invalidated same-sex and incestuous marriages, but it has not invalidated unlicensed marriages. The absence of an express invalidation of unlicensed marriages may be considered an expression of legislative intent under the canon of statutory construction known as expressio unius est exclusio alterius.

***

We note that the Legislature is quite capable of writing a strict statute that allows no exception for unlicensed marriages. The Legislature has done just that regarding unlicensed drivers, unlicensed lawyers, unlicensed doctors, and various other activities too numerous to mention.

***

We decline to hold that a solemnized marriage without a marriage license is per se invalid. “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

Judge Roberts wrote a dissent. 

Since 1967, when the Florida Legislature abolished common law marriage, there has been only one method of producing a legally cognizable marriage in Florida. See generally §§ 741.01-.212, Fla. Stat. (2002). Persons desiring to be married are required to apply for a marriage license which can be issued by a county court judge or the clerk of the circuit court. § 741.01, Fla. Stat. (2002).

Sua Sponte Order Of Dismissal Reversed In Annulment Action

In Brown v. Cowell (1D09-82), the First District reversed the trial court's sua sponte order of dismissal for lack of jurisdiction.  The court stated:

Appellant, a resident of Duval County, Florida, married Daucia T. Cowell, a citizen and resident of the sovereign nation of Jamaica, in Portmore, Jamaica, on April 14, 2008. Shortly thereafter, appellant disaffirmed the marriage upon learning that appellee entered the marriage solely for the limited purpose of obtaining U.S. citizenship.

***

Although personal service may be a preferred method of process, statutory law provides for constructive service of process on a non-resident defendant in any action for annulment where personal service cannot be had. See §§ 49.011, 49.021, Fla. Stat. (2008)

***

Also, the circuit court did not lack subject matter jurisdiction. A circuit court’s jurisdiction over a petition for annulment arises from its “equitable chancery jurisdiction,” Wright v. Wright, 778 So. 2d 352, 354 (Fla. 2d DCA 2001), and is not predicated upon the citizenship or residency of the respondent.

Dismissal Of Petition To Modify A Foreign Child Custody Determination Reversed

In London v. London (2D08-3129), the Second District reversed the trial court's order "dismissing his petition to modify a foreign child custody determination for lack of jurisdiction."

Jennifer Ellen London initiated dissolution proceedings in 2005 in French Saint Martin, where the parties lived together with their daughter. The French court exercised its jurisdiction over the matter, entering numerous orders regarding custody over the next several years. Mr. London unsuccessfully appealed at least two of those orders and sought to modify the French court's custodial determination on a number of occasions. With the French court's permission, Mrs. London and the child have resided in Florida since 2005. Mr. London, by his admission, has lived in Florida since 2007.

***

The Florida court, based upon its review of the foreign documents, dismissed in part because it determined that the foreign court would not find Florida a more convenient forum. However, as required by statute, the Florida court never actually communicated directly with the foreign court. By failing to provide the French court with this statutorily mandated courtesy, the Florida court could not determine the French court's actual response to direct communication between two judicial fora.

*Disclaimer: GrayRobinson, P.A. was involved in the above-referenced action.

Texas Judge Finds Texas Gay Marriage Ban Violates US Constitution

How Appealing links to a story in the Statesman written by Chuck Lindell titled "Judge's ruling nudges Texas back into gay marriage fight."  The article states:

But on Oct. 1, a state District Court judge in Dallas, weighing a divorce petition from a gay couple married in Massachusetts, ruled without elaboration that the state ban on same-sex marriage violated the U.S. Constitution's guarantee of equal protection under the law.

Florida courts have addressed similar issues.  Embry v. Ryan (2D08-1323) was released by the Second District on May 13, 2009 and the court held that it is a violation of the U.S. Constitution to refuse to enforce a same-sex couple adoption - gay adoption - recognized by another state. Read about it here and here.   There is also a pending case before the Third District relating to gay adoptio which you can read about here and here.

Eleventh Circuit Affirms Based Upon Rooker-Feldman

In Jason F. McGee v. The Honorable Carlton L. Kell (08-17063), the Eleventh Circuit affirmed the district court's holding that it lacked jurisdiction over the action based upon the Rooker-Feldman doctrine. Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1986). The court noted that "More recently, the Supreme Court instructed that the doctrine applies only to 'cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.' Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)."

The court held that "The instant case fits squarely within the admittedly narrow confines of the Rooker-Feldman doctrine. McGee was a 'state-court loser' in his divorce proceeding and child custody dispute who is now “complaining of injuries caused by” the allegedly improper state court contempt orders entered by Judge Kell."

Fourth District finds No Personal Jurisdiction Over Out of State Lawyer

In Hirsch v. Weitz (4D08-3495), the Fourth District reversed the trial court's order finding it had jurisdiction over a New York attorney.

When reviewing a decision finding personal jurisdiction, the district courts apply a de novo review. A two part test is applied: "First, the facts of the underlying action must bring it within the ambit of the Florida long arm statute...Second, the defendant must have sufficient 'minimum contacts' with Florida such that due process requirements are satisfied...Due process is satisfied where the foreign defendant would reasonably anticipate being haled into court in Florida."

In this case, the "actions which Weitz alleges constitute legal malpractice occurred primarily in New York for the purpose of finalizing a New York divorce which necessarily involved selling Weitz’s New York business...The necessary legal work was performed in New York by Hirsch, a New York lawyer, and the settlement agreement and final judgment of divorce were entered by a New York court."

"The alleged acts of legal malpractice in the present case did not cause Weitz to be injured in Florida. Weitz’s injury was sustained, if at all, in New York when the New York court entered a judgment against him. Thus, the tort of legal malpractice accrued, if at all, in New York, and a Florida court cannot properly exercise jurisdiction over Hirsch."

"Because Hirsch’s actions do not come within the ambit of Florida’s long-arm statute, a discussion of whether his contacts with Florida satisfy due process requirements is unnecessary."

Fourth DCA Reverses Contempt Order

In Anderson v. Department of Revenue (4D08-2485) the Fourth DCA reversed the trial court's order holding appellant in contempt. The court stated:

In Marcellus v. Voltaire, 649 So. 2d 944 (Fla. 4th DCA 1995) this court determined that the trial court committed reversible error when it entered an order finding that the father was in arrears in payment of his child support obligation, had the present ability to pay, and would be incarcerated if he failed to pay and shortly thereafter entered another order finding father indigent for purposes of appellate filing fees and costs. Id. at 944. We held that the finding of indigent status affirmatively established father’s inability to pay the purge. Id. (quoting Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla.1985)). Similarly, in the present case, the trial court erred in holding Anderson in contempt and shortly thereafter finding him indigent for purposes of appeal. As evidenced by the court’s finding of indigence, Anderson did not have the present ability to pay the purge.

Another Published Bankruptcy Decision from the Eleventh Circuit

In Elizabeth Chira v. Jose Saal (07-15897), the Eleventh Circuit issued a 17 page published opinion written by Judge Dubina affirming the district court and the bankruptcy court. Patrick S. Scott of GrayRobinson, P.A. was counsel of record for the appellee so I will only quote the court's opinion:

Denis and Elizabeth Chira acquired the Sheldon Beach Hotel in 1978 and operated the hotel together for over 20 years. In 1999, the couple decided to part ways, and for the past 10 years, Denis and Elizabeth have been locked in bitterly contested litigation over control of the hotel in both state and federal court. The Chiras’ state court divorce proceeding resulted in the formation of a contract for purchase of the hotel between a divorce court-appointed receiver and José Saal. Before this purchase contract was executed, the Chiras found themselves in federal court by way of Denis’s Chapter 7 bankruptcy case. The bankruptcy court approved a settlement agreement between José Saal and the Trustee of Denis’s bankruptcy estate, which calls for the performance of the Saal purchase contract, and the district court affirmed the bankruptcy court’s order. For the reasons that follow, we affirm the district court’s judgment affirming the bankruptcy court’s approval of the sale of the hotel to José Saal.

***

Bankruptcy Rule 9019(a) provides that “[o]n motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement.” In this circuit, a bankruptcy court evaluating a proposed settlement must consider:

(a) The probability of success in the litigation; (b) the difficulties, if any, to be encountered in the matter of collection; (c) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it; (d) the paramount interest of the creditors and a proper deference to their reasonable views in the premises. In re Justice Oaks II, Ltd., 898 F.2d 1544, 1549 (11th Cir. 1990) (quoting Martin v. Kane (In re A & C Prop.), 784 F.2d 1377, 1381 (9th Cir. 1986)). Courts consider these factors to determine “the fairness, reasonableness and adequacy of a proposed settlement agreement.” In re A & C Prop., 784 F.2d at 1381.

Although the bankruptcy court did not explicitly consider all four of the Justice Oaks factors in its order approving the settlement agreement, we conclude that the bankruptcy court did not abuse its discretion by approving the settlement agreement.

Insurer Did Not Have Duty To Notify of Expiring Life Insurance Policy

In Jackson National Life Insurance Co. v. Lovallo (1D08-2536) the First DCA held the appellant insurance company did not have a legal duty to notify anyone that the life insurance policy would soon expire.

The appellee was the former wife of the deceased. The divorce occurred prior to the death and the wife was awarded any proceeds of the policy as a part of the divorce. The wife argued the insurer should have informed her the policy would soon be expiring and given her an opportunity to renew the policy. The court held:

We are concerned here with the right to renew, not with simple non-payment of premiums. Section 627.4555, Florida Statutes (2008), which requires issuers of life insurance policies to notify policy holders of the nonpayment of premiums, only applies, moreover, to policies issued on or after October 1, 1997, and thus has no application to the policy in dispute here, which was issued in 1994.

There being no contractual, statutory, or common law basis upon which an owner of a renewable, term life insurance policy is entitled to receive notice of the right to renew beyond the notice in the policy itself, we are constrained to reverse the summary judgment entered below.

Fraudulent Remarriage Led Trial Court to Treat Two Marriages as One

This short decision by the Fifth DCA is interesting due to the facts.  The husband and wife married, divorced, remarried and three months later they divorced.  The former wife alleged and the trial court found that the former husband fraudulently induced the wife to remarry in order to avoid the alimony payments ordered after the first divorce.  The trial judge treated the two marriages as one and reapplied the original alimony payment.  Regardless of the potential fraud, the Fifth DCA reversed because the trial judge did not consider the circumstances at the time of the second divorce.  Even if treated as one marriage, alimony needs to be determined at the time of the trial and not an earlier point.

Decedent's Wife Entitled to Life Estate with Homestead Status

In Bayview Loan Servicing, LLC v. Giblin (4D08-1117) the Fourth DCA affirmed the circuit court's order concluding that the decedents child and former wife were protected by Florida's homestead laws. The Fourth DCA stated:

Decedent and Nivia Giblin were married in 1959. They had a daughter together. In 1981 they separated but never divorced. In 2000, decedent purchased a piece of residential property in Broward County. Title to the property was placed in the decedent’s name. The wife and daughter lived in the home, but decedent never did. Decedent died in 2001.

***

The language of article X, section 4 is clear and unambiguous. Here, decedent was a natural person who owned property occupied by his wife and child at the time of his death; thus, the property is homestead. Because decedent died leaving a spouse, the descent of his property is controlled by section 732.401(1), Florida Statutes (2001). As such, the wife is entitled to a life estate in the homestead with a vested remainder to the descendants. § 732.401(1), Fla. Stat.