Family Law Review: For the Week Ending June, 14, 2013

Family Law Review: For the Week Ending June, 14, 2013

It was a quiet week for family law cases and nothing new has come from the Second District.

The first of the two cases this week comes from the First District and revolves around timesharing and relocation.  In this case, STEPHEN MILTON v. JULIANNA MILTON, it appears that the former wife had a temporary injunction against the former husband dating back to 2008, which contained the only agreement and Order for timesharing for the parties’ minor child.  When Mr. Milton moved, and succeeded, in having the Injunction dissolved, the Order for timesharing was also dissolved.  This is important because where there is no Order for timesharing, a person cannot be held in contempt for violating the timesharing schedule.

Despite that fact that there was no Order for timesharing, Ms. Milton was required to comply with Florida Statute 61.13001.  That is the statute that governs relocation of minor children more than 50 miles from their residence.  In this case, Ms. Milton relocated herself and the child to the State of New York without getting Mr. Milton’s written permission or by filing a Petition for Relocation and getting the Court’s permission to move out of state.

“Mr. Milton was thus entitled to some relief—what relief, exactly, is not mandated by statute and is a matter of the trial court’s discretion.”  Before the trial court can create a remedy for Mr. Milton, it will first have to determine what is in the minor child’s best interest and prepare a new time sharing schedule.

The 1st District does not address the merits of Ms. Milton’s relocation; that is an issue for the circuit trial court.

If you are contemplating moving with minor children, make yourself aware of and familiar with Florida Statute 61.13001.  If you are unsure about what you need to do, consult with a family law attorney prior to move.

 

The second case also comes from the First District and involves child support calculations in a modification of child support action to which the Department of Revenue is a party.

Child support cases are generally straight forward numbers calculations and this case is no different.  The Father/Payor filed a petition to reduce his child support due to an involuntary decrease in his wages.  As is typical, the case took some time to process and two things occurred: the Father’s wages increased to a level that nearly matched what he was earning prior to his petition for modification and he was awarded a Court Ordered timesharing schedule, which gave him 38% of the child’s overnights.  If the only change was a return to pre-filing wages, the case would probably have ended there, but because the Father was awarded substantial timesharing,  his child support obligation would presumably decrease.

At the hearing on the child support modification, the Administrative Law Judge (ALJ) failed to include the cost the Father was paying for dental insurance, as well as the cost he was  paying for daycare,  in the child support calculation.  This was error.  Not many expenses can be included in the child support calculation, but insurance (health, dental and vision) and day care are two that must be included.

The Administrative Law Judge also failed to award a modification of child support retroactively.  That is, the Father was entitled to a change in his child support for the period of time he was earning less money and had substantial timesharing with the child.  All the parties agreed that this was an error and that issue was sent back to the ALJ to correct.

If you are the respondent in a child support case, particularly one involving the Department of Revenue, you should seek the representation of an attorney before your hearing to ensure you get credit for all the payments you are making towards health insurance and daycare as well as credit if you are paying child support for children of another relationship.

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