Stephens’ Squibs – August 2018

Alimony:

Clausen v. Clausen, 43 Fla.L.Weekly D1913 (Fla. 5th DCA 2018).  Award of alimony remanded as court failed to include wife’s imputed income in determination.

Velez v. Montalvo-Velez, 43 Fla.L.Weekly D1831 (Fla. 2nd DCA 2018).  Award of alimony remanded because Court did not provide findings that would allow a meaningful review.

Appeals:

Salgado v. Suyapa-Jimenez, 43 Fla.L.Weekly D1921 (Fla. 3rd DCA 2018).  Timely filed motion for rehearing on final order tolls deadline to appeal.  Amended final judgment entered after appeal is filed is a nullity.

Marzullo v. Marzullo, 43 Fla.L.Weekly D1668 (Fla. 2nd DCA 2018).  Appeal was dismissed as judicial labor was not complete and judgment was therefore non-final.

Attorneys’ Fees:

Bauchman v. Bauchman, 43 Fla.L.Weekly D1858 (Fla. 4th DCA 2018).  It is not enough to show adverse party’s ability to pay is greater, you must show the necessity for financial assistance to support award of fees.

Enforcement:

Onge v. Carriero, 43 Fla.L.Weekly D1971 (Fla. 1st DCA 2018).  Orthodontics are extraordinary medical expense.  You cannot compel other parent to pay unless it is specified in agreement or judgment.

Equitable Distribution:

Cooley v. Cooley, 43 Fla.L.Weekly D1965 (Fla. 2nd DCA 2018).  The fact one party was primary source of income during marriage is insufficient to support unequal distribution.

Olivarez v. Olivarez, 43 Fla.L.Weekly D1902 (Fla. 1st DCA 2018).  Court cannot charge $23,000 account depleted during pendency of divorce to party without findings of waste.

DiStefano v. DiStefano, 43 Fla.L.Weekly D1849 (Fla. 2nd DCA 2018).  House and car titled in Wife’s name bought with wife’s non-marital money which was deposited into an account in Wife’s name alone that was commingled with wife’s earning during marriage caused house and car to be marital.

Bork v. Pare, 43 Fla.L.Weekly D1794 (Fla. 2nd DCA 2018).  Trial court erred summarily denying motion to dissolve injunction that was facially sufficient.

Knecht v. Palmer, 43 Fla.L.Weekly D1779 (Fla. 5th DCA 2018). Wife commingled funds for improvements for the wife’s non-marital house because funds were deposited into joint account before being dispersed.  But under the circumstances of this case, wife was entitled to unequal distribution so judgment awarding 100% of house to wife affirmed.

Vaughn v. Vaughn, 43 Fla.L.Weekly D1683 (Fla. 4th DCA 2018).  General conclusory statement that certain items were marital and some were not were not sufficient findings of fact required by 61.075(3)(d).

Lopez v. Hernandez, 43 Fla.L.Weekly D1681 (Fla. 4th DCA 2017).  Without transcript, valuation of home affirmed.  There is no requirement for Court to make findings of fact supporting each value.  Without transcript, giving wife 55 months to pay husband equalizing payment affirmed.  Without transcript, granting wife “special equity” in house titled in her name remanded because judgment did not contain findings that proceeds to purchase were marital or non-marital.

Injunctions:

Carroll v. Goll, 43 Fla.LWeekly D1933 (Fla. 3rd DCA 2018).  Obligation to pay child support in domestic violence injunction ends when injunction expires.

Raulerson v. Font, 43 Fla.L.Weekly D1746 (Fla. 3rd DCA 2018).  Petition for stalking injunction dismissed because conduct between two attorneys constituted unprofessional behavior, not stalking and better addressed by Florida Bar.  Litigation immunity does not apply to stalking injunction.  Lengthy discussion.

Murphy v. Blubaugh, 43 Fla.L.Weekly D1712 (Fla. 2nd DCA 2018).  Can’t complain about insufficient evidence in stalking injunction if you don’t provide appellate court transcript.

Douglas v. Douglas, 43 Fla.L.Weekly D1711 (Fla. 2nd DCA 2018).  The following actions in close proximity do not constitute grounds for domestic violence injunction because there was no threatened or actual violence; 1) husband peeled out of wife’s business parking lot in front of her and other people, 2) husband locked himself in bedroom and wouldn’t open door, 3) the husband was seen in the same mall where wife was having lunch, 4) husband called wife “mother of the year” for missing son’s  basketball team and pointing finger in her face, and 5) husband called wife liar and pointed finger in her face.

Life Insurance:

McKnight v. McKnight, 43 Fla.L.Weekly D1752 (Fla. 1st DCA 2018).  Life insurance requirement on alimony reversed when no special circumstances, nor would recipient be in dire financial straights if obligor died.

Modification:

Bauchman v. Bauchman, 43 Fla.L.Weekly D1858 (Fla. 4th DCA 2018).  Retirement does not have to be unanticipated to trigger modification.

Buschor v. Barnes, 43 Fla.L.Weekly D1775 (Fla. 5th DCA 2018).  Order modifying timesharing reversed because relief not pled and parties due process was therefore violated.

Procedure:

Fields v. Fields, 43 Fla.L.Weekly D1963 (Fla. 5th DCA 2018).  Trial court affirmed for setting aside final judgment that was wife’s proposal that husband objected to, but Court went too far setting aside settlement agreement when relief was not requested.

In Re: Amendments to the Florida Supreme Court Approved Family Law Forms, 43 Fla.L.Weekly S328 (Fla. 2018).  Amended notice of hearing for contempt motions.

Fields v. Fields, 43 Fla.L.Weekly D1963 (Fla. 5th DCA 2018).  Trial court can set aside final judgment that was wife’s proposal that husband objected to, but Court went too far setting aside agreement when relief was not requested.

Munoz v. Salgado, 43 Fla.L.Weekly D1825 (Fla. 3rd DCA 2018). Trial court denied Father due process by granting Mother’s emergency motion to change custody without giving father meaningful opportunity to be heard.

McNeil v. McNeil, 43 Fla.L.Weekly D1694 (Fla. 5th DCA 2018).  Must prove residency with corroborating evidence for Court to have jurisdiction to enter dissolution.

Franco v. Thomas, 43 Fla.L.Weekly D1647 (Fla. 3rd DCA 2018).  Trial court erred granting 1.540 motion for relief from judgment.  1.540 is not an appropriate vehicle to challenge final judgment based on legal error.  That’s what rehearings and appeals are for.

Relocation:

Ryan v. Ryan, 43 Fla.L.Weekly D1796 (Fla. 4th DCA 2018).  Attorney had good cause to preclude entry of relocation despite not filing response to relocation petition within 20 days.

Buschor v. Barnes, 43 Fla.L.Weekly D1775 (Fla. 5th DCA 2018).  Order denying relocation reversed because competent evidence demonstrated relocation was in child’s best interest.  Lengthy discussion.

Support:

Masnev v. Masnev, 43 Fla.L.Weekly D1863 (Fla. 4th DCA 2018).  No provision in law for Court to award lump sum child support.

Denis v. Denis, 43 Fla.L.Weekly D1729 (Fla. 3rd DCA 2018).  Child support judgment remanded back to trial court to explain why it did not apportion uncovered medical expenses pro rata to parties’ income.

August 31, 2018 – Florida Bar Disciplinary Actions

Attorney permanently disbarred effective immediately, following an Aug. 23 court order. (Admitted to practice: 2004) Attorney was found guilty in court of 42 counts of sexual battery on a child younger than 12-years-old, and other sexual battery offenses regarding children. He was sentenced to life in prison. (Case No. SC17-2191)

Attorney disbarred effective immediately, following a July 5 court order. (Admitted to practice: 1998) Attorney was charged in federal court with five counts of wire fraud, and one count of conspiracy to commit wire fraud. He was sentenced to 240 months in prison for each count to be served concurrently, and three years of supervised release upon completing the sentence. (Case No. SC13-395)

Attorney disbarred effective immediately, following an Aug. 2 court order. (Admitted to practice: 2009) Attorney accepted a fee to represent clients and foreclose on several properties. She did little or no work on the cases. Attorney did not respond to the complaints, nor did she participate in The Florida Bar’s case against her. (Case No. SC18-40)

Attorney disbarred effective immediately, following an Aug. 9 court order. (Admitted to practice: 2010) Attorney misappropriated client funds, abandoned his law office, and failed to appear at various court hearings. He also neglected numerous clients’ matters. On March 15, attorney was suspended from practicing in bankruptcy court for failing to comply with prior court orders. (Case No. SC18-147)

Attorney disbarred effective immediately, following an Aug. 2 court order. (Admitted to practice: 2005) Further, attorney shall pay restitution of more than $148,000 to an estate. Attorney misappropriated client trust funds. He also failed to participate in the disciplinary proceedings before the referee. (Case No: SC18-224)

The court granted attorney’s petition for disciplinary revocation without leave to seek readmission, effective 30 days from an Aug. 16 court order. (Admitted to practice: 1977) Disciplinary revocation is tantamount to disbarment. Disciplinary matters pending against attorney included the alleged withdrawal of $1.5 million in advance fees without the client’s authorization. (Case No: SC18-987)

The court granted attorney’s petition for disciplinary revocation, with leave to seek readmission after five years, effective 30 days from an Aug. 23 court order. (Admitted to practice: 1994) Disciplinary revocation is tantamount to disbarment. A disciplinary matter pending against attorney involved failure to maintain her trust account in substantial minimum compliance with Bar rules, resulting in trust account shortages. (Case No. SC18-1023)

Attorney suspended until further order, effective 30 days from a July 27 court order. (Admitted to practice: 2002) According to a petition for emergency suspension, attorney appeared to be causing great public harm by settling cases without the consent of clients, filing frivolous motions, and providing misleading information. (Case No. SC18-1197)

Attorney suspended until further order, effective 30 days from an Aug. 28 court order. (Admitted to practice: 1998) Attorney was found in contempt for noncompliance. The Florida Bar served attorney with a subpoena requiring him to produce his attorney trust account records for audit. Even after being granted an extension of time to provide the records, attorney failed to comply. (Case No. SC18-781)

Attorney suspended until further order, effective 30 days from a July 19 court order. (Admitted to practice: 2008) According to a petition for emergency suspension, attorney appeared to be causing great public harm by abandoning his law practice without notifying his clients and without taking reasonable steps to protect their interests. (Case No. SC18-1151)

Attorney suspended for 18 months, following a July 19 court order. (Admitted to practice: 2003) In the context of his divorce case, attorney engaged in a pattern of deliberately disobeying and disregarding orders of the family court. He also failed to pay his mortgage and the bank filed to suit to foreclose on his home. Attorney subsequently submitted a mortgage modification application with a forged signature, that he personally witnessed. (Case No. SC16-1773)

Attorney suspended for one year, effective 30 days from an Aug. 23 court order. (Admitted to practice: 2013) As trustee and attorney for an irrevocable life insurance trust, attorney took no significant action and completed no meaningful legal work. Over a nine-month period, he wrote checks to himself totaling approximately $39,000 for fees and administrative costs. Attorney did not resign as trustee, even after repeated requests by the beneficiaries. (Case No. SC18-271)

Attorney placed on probation for six months, following an Aug. 16 court order. (Admitted to practice: 1995) In two separate cases, attorney failed to diligently pursue clients’ legal matters or maintain adequate communications with them. As part of his probation, attorney will participate in the  Diversion/Discipline Consultation Service, a practice and professional enhancement program. (Case No. SC18-317)

Attorney suspended for 90 days, effective 30 days from a July 26 court order. (Admitted to practice: 1989) Attorney was hired in April 2008 to represent clients concerning their investment loss in a real estate venture. The case was subsequently dismissed for lack of prosecution and the court entered a final judgment against all the plaintiffs. In December 2017, attorney admitted to the court that he did not prosecute the case for the benefit of his clients and he failed to keep them informed. (Case No. SC18-551)

Attorney suspended for 90 days, effective 30 days from an Aug. 16 court order. (Admitted to Practice: 1977) Further, upon reinstatement, attorney is placed on probation for nine months. In two separate post-conviction matters, attorney failed to provide his clients with competent and diligent representation. He also failed to adequately communicate regarding their criminal matters. Attorney agreed to a stipulation with the U.S. Department of Justice Tax Division for failing to pay his personal income taxes. (Case No. SC18-1239)

Attorney suspended for 60 days and placed on probation for three years, effective 30 days from an Aug. 23, court order. (Admitted to practice: 1988) Attorney was negligent in managing her trust account and supervising a nonlawyer employee. As a result, proper trust account records were not maintained. (Case No. SC18-1269)

Attorney suspended for 30 days, effective 30 days from an Aug. 2 court order. (Admitted to practice: 1979) Attorney served subpoenas for depositions on two out-of-state witnesses without complying with applicable statutes. Although there was no compulsion for the witnesses to attend, the subpoenas misrepresented that failure to appear could result in contempt of court. (Case No. SC17-787)

Attorney suspended for 30 days, effective 30 days from an Aug. 23 court order. (Admitted to Practice: 1989) Further, attorney shall pay restitution of $10,000 to a client. Attorney failed to communicate adequately with his client and he failed to obtain the client’s permission before he sold her allegedly uncollectible judgment to a third party. (Case No. SC18-1276)

Attorney suspended for 20 days, effective 30 days from an Aug. 23 court order. (Admitted to Practice: 1985) Attorney’s failure to respond to a Motion to Dismiss Plaintiff’s complaint by the deadline resulted in the court entering a final order of dismissal. Attorney also failed to communicate with his client and failed to return his client’s files after repeated requests. (Case No. SC18-1265)

Attorney to be publicly reprimanded by publication in the Southern Reporter, following an Aug. 23 court order. (Admitted to practice: 1983) Further, attorney shall complete a professionalism workshop. While a sitting judge, attorney failed to ensure that his campaign ads were approved by the endorser in writing, in compliance with election laws. He also utilized his judicial assistant to perform personal tasks to the extent that it interfered with her ability to perform her duties, and, he used the Fourth Judicial Circuit’s business account for personal items. (Case No. SC18- 1243)

Attorney be publicly reprimanded following an Aug. 23 court order. (Admitted to practice: 2008) Further, attorney shall be placed on probation for two years, effective immediately. Attorney was negligent in managing her law firm’s trust account, following dismissal of the bookkeeper. (Case No. SC18-1271)

Attorneyto be publicly reprimanded effective immediately, following an Aug. 23 court order. (Admitted to practice: 2009) attorney had an agreement for legal services with a private investigation firm to file claims assigned to the investigation firm for surplus funds held in court registries. The investigation firm directly contacted potential clients to become the assignee of their claims to recover surplus funds from the courts and charged as much as 15 percent of the surplus funds recovered for compensation in violation of Florida Statutes. If a potential client requested an attorney recommendation, the firm would refer the client to attorney. (Case No. SC18-1290)

Attorney to be publicly reprimanded following an Aug. 2 court order. (Admitted to Practice: 2007) Attorney directly communicated with individuals represented by counsel, outside of their counsel’s presence. (Case No. SC17-1462)

Attorney to be publicly reprimanded following an Aug. 23 court order. (Admitted to Practice: 2002) Attorney was hired to handle an eviction matter. Although he did take some action, he failed to appear at a mediation, and did not take meaningful steps to reset the mediation or otherwise solve the issue. The eviction case was dismissed because of his failure to appear at the mediation. (SC18-1257)

Attorney to be publicly reprimanded following an Aug. 23 court order. (Admitted to practice: 1975) Attorney charged his client a nonrefundable fee without confirming it in writing and explaining the nature and amount. Eventually, the disbursements exceeded the balance of funds deposited by Rodriguez. (Case No. SC18-1256)

Attorney to be publicly reprimanded following an Aug. 23 court order. (Admitted to practice: 1973) Attorney commingled funds by creating a subaccount in his firm’s trust account into which he deposited personal funds and made disbursements for a personal matter. A separate fee award in his trust account offset any negative balances. (Case No. SC18-1254)

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s