Blog
November 25, 2019
Attorney Brendan R. Riley won a victory for a commercial client this week, when the Circuit Appellate Court reversed a decision of the County Court, and sent an eviction and final judgment back to the lower court for retrial. The opinion can be found here. The Case When an auto mechanic approached Mr. Riley for help with an eviction, it seemed like a doubtful case. There was both a residential and a commercial lease involved, and time was running out to file an answer on the case. Mr. Riley reviewed the documents, and his firm spotted a possible weakness in the plaintiff's case. Residential leases and commercial leases are governed by two separate sections of Chapter 83 of the Florida State Statutes, and although they are similar, the sections differ in one critical section. The residential section, 83.60(2), requires deposit of rent into the court registry before the hearing to determine rent. The commercial section, 83.232(1), does not. The plaintiff requested relief based upon applying the residential chapter and section to both leases; and the lower court agreed. A Writ of Possession was issued on both properties. The Appeal Mr. Riley appealed the case based on this improper application of the statute. In an appeal, the district court of appeal (or any court sitting in an appellate capacity) can only review the court record, and the lower court judge's written order. In civil proceedings (unlike criminal where there is always at least an audible recording that can later be transcribed) transcripts are only made if the parties hire their own court reporter, so there was no transcript for the appellate court to review in this case. The appellate court agreed with Mr. Riley's position that the lower court judge should not have accepted the plaintiff's argument applying section 83.60(2) to both the commercial and residential leases. The appellate court also agreed that because no order had been made determining the amount of rent due, when the Appellant had moved for a hearing, that this needed to be done as well. The appellate court determined this was a harmful error. A harmful error is one which resulted in a miscarriage of justice and must be reversed. To correct this error, the default and final judgment for the commercial property, and the order issuing the Writ of Possession on the commercial property, were reversed, and that portion of the case remanded to the lower court for rehearing. The appellate court considered the same facts for the residential property, and found the error to be harmless. This is an error which, although a misapplication of law, does not rise to the same level of harm to the defendant. Since the correct section of the Statutes were applied to the residential property, the appellate court did not feel there had been harmful error, and the judgment and Writ were allowed to stand. The Outcome Most cases never go to appeal. To determine if a case rises to the level of harmful error, an appellate court must presume the lower court's rulings are correct, and the burden is on the Appellant (the one who brings the appeal) to show how the ruling was incorrect and why it should be reversed. It does not take a big law firm with fancy degrees and prestigious names to win appeals. Persistence, careful review, and knowledge of the law are what is needed to determine if an appeal is needed, and if it is, how it should be done. Stewart & Riley has the persistence, the knowledge, and the review and research skills to take an appeal all the way. If you may have a commercial or residential landlord tenant matter in which you need legal assistance or an appeal of some kind (provided you come to us timely so that a notice of appeal can be timely filed), do not hesitate to contact us a 727-312-3748 or BRR@BetterCallBrendan.com.
October 25, 2019
There is a much smaller segment of Family Law, and one often overlooked until it’s desperately needed by the people involved; and then it might be too late to educate yourself. You just have to find an attorney and hope he or she (or their firm) is the right one for the job. But a little knowledge, in this case, can be a good thing, not a dangerous thing. This quick outline is not meant to give more than a little bit of knowledge, but it will be followed later by more detailed information. Guardianships, sometimes called adjudication, are intended to remove the freedom of choice from an individual who is not able to safely decide for himself or herself, and give it to someone (the “guardian”) who is deemed to be able to decide for them. A guardianship is not a power of attorney, which simply gives another person the right to make legal decisions for someone who is unable to make certain legal decisions for a specific period of time. A guardianship removes all decision-making ability from someone, usually permanently, and only after it has been determined that person cannot care for themselves. Guardianships are generally given in courts because of a person’s mental instability or physical disability; or if a child has no parents, but an adult wishes to be legally responsible for him or her. Dependency is the unfortunate situation that arises when a child must be removed from the parents and placed in the care of the state. The reasons for this are varied and never good; and the outcomes are rarely happy for anyone involved, including the courts. Legal action becomes an issue when for whatever reason the child must be removed from both parents and there are no close relatives with whom the child can immediately be placed. More issues can develop when relatives and parents begin haranguing the court and Child Protective Services (DFS, DCFS, etc.) demanding action. Dependency is a delicate, complex process, akin to juggling ferrets while riding a unicycle downhill through flaming razor blades, and needs a deft touch to negotiate. Special needs and all that it entails (IEPs, accommodations) may not be immediately thought of as Family Law, but it should be. Schools use parents’ ignorance of the law to ignore, deny, or disregard IDEA and 504 regulations, when they should not; and disability lawyers are often swamped with post-accident claims, veteran’s claims, and all the other slings and arrows man is heir to. Special needs and special education law is a unique niche that rests between family law and education law, and should be tucked away in any parent’s mind before a child begins having trouble in school. Hopefully, no family will ever have troubles that require thinking of these family law nooks and crannies. But by having them in mind ahead of time, the wise family will not be caught off guard if an issue arises requiring a specialized law firm with specialized knowledge to navigate these mysterious waters.
October 24, 2019
Sometimes, parenting plans have to be designed for problems that seem impossible. Maybe one parent gets a job 500 miles away. Maybe one parent is incarcerated or abusive. Maybe things have changed in the household and now the former parenting plan just won’t work out. Even the most intractable of problems can be resolved by various parenting plan/timesharing templates already devised by the Florida courts. These can be refined by the parties, but the outlines already exist. All that remains is for the parties and their attorneys to determine what issues exist, and what format best serves the needs of the children and the living arrangements of the parents. Long-Distance Timesharing. Florida courts have a strong preference for 50/50 timesharing or something close whenever possible; but if one party lives more than 50 miles away (or outside a reasonable commute), or outside the state, then a long-distance plan is the only option. In a long-distance plan, the child or children will live during the school year with one parent, and then spend summers, and generally winter holidays, with the other parent. FaceTime, Skype, and phone calls are required. Supervised or Restricted Timesharing. In cases where there are allegations of abuse, criminal behaviour, or other issues which would negatively impact the child, one party may request supervised timesharing. Supervised timesharing may be carried out at a supervisory facility, or under the monitoring of an approved individual. Restricted timesharing may involve visitation being done at specific locations, or under certain conditions (such as only during the day, or not at the parent’s home). Courts generally want a specific result from supervised or restricted timesharing, and will not order it unless there are clear and convincing grounds for such restrictions. Rehabilitative Timesharing. Also called therapeutic or restorative timesharing, this type of visitation is ordered when a parent has become estranged from a child or has been absent from the child’s life for some reason, such as incarceration, illness, or foster placement. The court will order the estranged parent to be reunited with the child under conditions similar to supervised visitation, but usually with a therapist or counsellor to facilitate reunification. The goal of all of these types of modified timesharing is to bring and keep the child or children in contact with the parent in the least restrictive environment possible, while keeping all parties as safe and secure as reasonably feasible. As much as possible, the final goal is for the child to be able to live with both parents equally, without interference from the courts, and without oversight from any agency. The goal of an interested attorney in these proceedings is to smooth the path of the parent client and to keep their interaction with the court and the other party to a minimum, and to minimize the friction that seems to result when parents collide in court. Parents should consider hiring a competent pilot to steer their ship through the waters of court and avoid any icebergs in advance.
October 23, 2019
When parties have no property, no children, and are in agreement about dividing up their debts and assets before they go to court, the question arises: Why do they need an attorney? After all, they aren’t arguing about anything, there isn’t any house or bank account, she doesn’t want alimony and the kids are grown or there never were any...why pay extra for someone to find problems that aren’t there? Well, there are a few good reasons to have a lawyer look things over in even the most simple and amicable divorce, no matter how little you think you have to split up. Here are a few things you may have overlooked, or even been unaware you needed to have. Service or waiver of service. Even in a divorce where both parties agree to everything, one person has to be the “petitioner” and one has to be the “respondent”, and the respondent still has to be served with process; or else file a waiver of service. The dissolution packet you get from the clerk’s office or online comes with a Waiver of Service document; but it has to be filled out, signed, and notarized. Improper service is one of the easiest ways to challenge a Final Judgment later, if someone changes their mind. Avoid it by having a law-talkin’ person look over your paperwork. Financial affidavits. In a Simplified Dissolution there is a way to waive financial affidavits; but some jurisdictions want one anyway. If you fill out the wrong petition, you will have to file a financial affidavit, and can be penalized for failing to do so. At a minimum, you will delay your final judgment while you file an affidavit you might not have had to file. Have an attorney make sure you didn’t need to do it. Florida courts require mediation in all dissolutions, and there is nothing anyone can do about it. You will need to have completed mediation before your final hearing can be set at an absolute minimum. Even if you never had an attorney at any other time in your divorce, it is a good idea to have one at or nearby for the mediation, because the mediation agreement is used as the template for your marital settlement agreement. Things people didn’t intend to say often get incorporated by accident into settlement agreements, and then have to be removed later with much heartache. Finally, if at any time during the process your soon-to-be-former significant other acquires legal counsel for any reason, you should seriously think about getting one. Even if it is for something besides your divorce, the unrepresented party is always at a disadvantage to the represented party. No matter how amicable or simple your dissolution may be, always remember: satisfaction is cheap, regret lasts a lifetime.
September 23, 2019
Nothing causes more arguments among divorcing parents than the specter of child support. And no question annoys attorneys and child advocates more than parents who say "I want to do the right thing by my child…BUT…" Child support has collected a number of myths and misconceptions among angry fathers and irate mothers anxious to prevent their estranged spouse from getting more money than they "deserve." Many Internet legal "experts" have weighed in on the topic, but there are some basic truths about child support that parents should be aware of, and at least accept. Everyone pays child support. Support is calculated upon many factors, including time spent with the children, income, expenses, and the needs of the children. Both parents are expected to contribute equally. The payments may offset, based upon time spent with the children; but both parents will be paying. You can never modify your child support. Actually, child support can be modified upon a showing of "substantial and significant changes" in circumstances. Judges will not grant a modification merely because a parent lost a job or bought a new car; but a modification may be granted if a parent becomes disabled or if a child needs special education. Child support can only be spent on children! The purpose of child support payments is to provide the children with a comfortable life and lifestyle. This may or may not mean the payments are spent directly on food or clothing or school supplies. All attorneys have stories of furious fathers and angry mothers who storm into their offices waving Facebook pictures and shouting about how their former spouses are buying vacations and new cars with "their" money. However, child support is meant to support the children. If the mother needs a new car because her old car broke down; if father thinks the kids would benefit by a trip to the Grand Canyon, these are legitimate expenses. Nobody can "waive" child support. Although some states allow parties to agree to waive child support, Florida is not one of them. Parties can request a departure from guidelines, and ask the judge permission to pay less or more than they would be paying; but it is still the judge's discretion. Parents cannot decide between themselves to not pay child support. The intent behind child support is, obviously, to support the child. Two people created a third person, and are responsible for its well-being and upbringing for 18 years. The goal is to prevent a single parent (often the mother) from having to turn to state support to help raise the child, because the other parent (often the father), decided to skip out on responsibility. Child support is not intended to punish either parent, or to provide a comfy living for a lucky recipient. If it seems that it has been unfairly allocated, then the parents should consult an attorney to see what can be done. A modification can be ordered if it can be shown that the original order was improper or if it is being misspent. Contact a family law attorney for information.
September 13, 2019
One of the hotly argued topics in a divorce is alimony. Who is entitled to alimony? Who has to pay it? How long is alimony paid? Does alimony always have to be paid? And what if the wife makes more than the husband? Who makes the decisions and how do they decide? In times long past, like thirty or forty years ago, alimony was paid almost exclusively by the husband to the wife, because the husband was likely to have an income and the wife was not. Today, both parties most likely have incomes, or the ability to work; or at least there is no presumption that the wife is not working. Indeed, the wife may have a better job than her husband. So the courts look to numerous factors in determining if alimony should be awarded, and to which party, when a marriage is dissolved. Florida State Statute section 61.08(2) lists a plethora of factors the court must consider, which can include, but are not limited to: (a) The standard of living established during the marriage. (b) The duration of the marriage. This is critical, because for purposes of determining alimony, there is a rebuttable presumption that a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater. (c) The age and the physical and emotional condition of each party. (d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each. (e) 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. (f) 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. (g) The responsibilities each party will have with regard to any minor children they have in common. (h) 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. (i) All sources of income available to either party. It is important to consider whether each party is able to work, able to earn a living, able to improve their standard of living; and whether one or the other party has been out of the workforce for an extended period of time during the marriage. Formerly, when women were the primary homemakers, a divorce meant they entered the workforce with no training and no skills. Today, a spouse may still enter the workforce at a disadvantage, having been home for five or six years with children. To alleviate this, there are several types of alimony beyond permanent alimony which can be granted. Permanent alimony is typically only awarded to spouses in long-term marriages when the factors listed above indicate that the spouse will need support for the rest of his or her life, or until remarriage. This type of alimony is becoming rarer. Durational alimony is awarded when a lengthy term of alimony is needed—many years of alimony—but permanent alimony is not appropriate. Durational alimony cannot last longer than the length of the marriage. Rehabilitative alimony is intended to assist the spouse receiving it while they develop or reacquire skills needed for self-support. For instance, if the wife had been a teacher, but her teaching credential had lapsed, rehabilitative alimony would allow her to take any refresher classes and test for her credential. “Bridge-the-gap” alimony cannot last for more than two years. Intended for short-term marriages, it is meant to assist a party in the transition from being married to being single. Whether or not you want or need alimony, or whether or not you want to pay it, is a complex question. Your family law attorney can help you make your way through the factors and determine what you have, what you need, and who has to make the payments.
August 22, 2019
Everyone knows that when a couple gets divorced, the first thing that happens is they divide up the property. But what is that? What qualifies as “marital property” and what doesn’t? How is it divided fairly? And what happens if one party wants something, and the other one doesn’t want to give it up?
August 15, 2019
It is extremely important that you notice your foreclosure plaintiff for a corporate representative’s deposition after having embarked upon and completed written discovery. You will want the corporate representative with the most knowledge as to several thing including the following: Knowledge of the facts asserted in the Pleadings. Knowledge of the facts asserted in any affidavit submitted by Plaintiff or Plaintiff’s agent(s). Knowledge of facts supporting Plaintiff’s modification of the subject note and how it supplemented and amended the subject note. Knowledge of the authenticity of any notes, allonges and assignments on which Plaintiff relies. Knowledge of the authenticity of the payment history. Knowledge of the performance of any conditions precedent, particularly under Paragraph (acceleration paragraph number) of the subject mortgage. Knowledge of any claim or acquisition of benefits from a private mortgage insurance policy that paid as a result of a default on the subject loan, whether in part or in full of the subject loan. Knowledge of the default date as April of 2011 when Defendant stopped making payments before that date. Any and all “bailee letters” in the Plaintiff’s possession, custody or control. Any knowledge as to recording the subject note, mortgage or modification of the subject note.
August 12, 2019
When a New Port Richey or Pasco County Court evaluates timesharing or parenting time between parents and parental responsibility (decision making authority when it comes to health, school, etc.), the Court will consider at least 20 potential factors in making such a decision as outlined in Florida Statute Section 60.13(3) as follows: (3) For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to: (a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required. (b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties. (c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent. (d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity. (e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child. (f) The moral fitness of the parents. (g) The mental and physical health of the parents. (h) The home, school, and community record of the child. (i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference. (j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things. (k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime. (l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child. (m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child. (n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect. (o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties. (p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities. (q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse. (r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child. (s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs. (t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule. Not every factor will be considered in every case, and there are factors that are not listed here that can be considered under 60.13(3)(t), a catch all factor of sorts. If you have questions, would like a consultation from a New Port Richey Family Law attorney, please do not hesitate to contact Stewart & Riley at 727-312-3748 or BRR@BetterCallBrendan.com.