Attorney Fees

How can I get the other side to pay my attorney fees?

In family law cases, attorney fees are often based on the “need and ability to pay” standard. This can get quite complicated, as I am sure we all need (or at least want) someone else to pay our attorney’s fees. The problem is whether or not the other side as the ability to pay them.

In civil cases, it can be possible to get attorney fees from the other side if a contract provides for fees, or if a statute is on-point. There is an additional way: a Proposal for Settlement. This is governed by Florida Statute §768.79 and Florida Rule of Civil Procedure 1.442.

Attorney FeesWhile the language of both can get complex, it is interesting what can happen if a party chooses to use a proposal for settlement. Recently, in RJ Reynolds and Liggett Group v. Ward, the Plaintiff sought damages from the Defendants. During the time the case was pending, the Plaintiff sent a proposal for settlement, which indicated an amount to settle the case. The Defendant did not accept the proposal. Without going into the nuances of what is required under a proposal for settlement in order to trigger an award of attorney fees, in this case, the Plaintiff received an award from the jury that was well above the proposal. The trial court determined that the Plaintiff was entitled to attorney fees. RJ Reynolds appealed.

The 1st District Court of Appeals held that the Plaintiff did not properly comply with the statute and the Rule of Civil Procedure, and strict compliance is necessary, so the award of $1,452,337.62 in attorney’s fees was reversed. The court even noted that it was clear that punitive damages (the item that wasn’t specifically included in the proposal for settlement) would have been extinguished if the tobacco companies had accepted the offer, but the supreme court made the test strict compliance, not the absence of ambiguity.

Photos in this blog are courtesy of: blog.jamessansonelaw.com, socialsecurityinsider.com

Valid Contract

But, I thought we had a contract!

Many times, people think they have an agreement with someone, only to find out that they don’t. Of course, if there is no actual “contract”, there may be other remedies available, but the fact that someone doesn’t have a valid, enforceable, contract can cause concern.

In Office Pavilion South Florida, Inc. v. ASAL Products, Inc., 849 So.2d 367 (Fla. 4th DCA 2003), the parties had a contract for keyboards, which obligated one party to purchase a minimum of 1,000 keyboards a year. There was also a provision for the purchase of chairs, however, there was no minimum quantity term for the chairs. The Court noted that it is a fundamental principle of contract law that a promise must be supported by consideration to be enforceable.Valid Contract And, in a contract where the parties exchange promises of performance, “[i]f either of those promises is illusory or unenforceable then there is no consideration for the other promise.” Id at 370. The Court held that Pavilion agreed to sell to ASAL any chairs it chose to order at the price set forth in the price list. While ASAL may have agreed, its acceptance involved no promised performance and therefore did not constitute consideration to support the contract modification for the Aeron Chairs. Id. The Court also noted that, under Florida Statutes §672. 201(1), without a quantity for the amount of chairs purchased, the contract would be unenforceable.

Without all of the requirements of a contract, and a meeting of the minds as to the terms of the contract, the Court here found that a contract did not exist.

Child Testify

When can a child testify in court?

Clients often ask me how old a child has to be in order to testify in Florida. Generally speaking, I am dealing with family law cases. Parents have a difficult decision to make in even requesting that their children testify. Judges have the even more difficult decision of whether or not to allow it. In addition to the statutory factors listed below, a number of factors go into my argument (either for or against, whatever the case may be), including the information sought from the child (could that same information be obtained elsewhere), the relationship between the child and the parents (if there is alienation involved, it typically doesn’t make any sense to have a child testify, as one already knows what the child will say: “I love my mom/dad” versus “I hate my mom/dad”), the type of testimony (in cases of sexual or domestic violence, children’s interests become that much more important).

Florida Family Law Rule 12.407 provides: “No minor child shall be deposed or brought to a deposition, brought to court to appear as a witness or to attend a hearing, or subpoenaed to appear at a hearing without prior order of the court based on good cause shown unless in an emergency situation. This provision shall not apply to uncontested adoption proceedings.”

Florida Statute 61.13(3)(i) also provides a factor for the Court to consider in determining a parenting plan for minor children. It Child Testifyprovides, in part: “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… The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.”

In Monteiro v. Monteiro, 55 So.3d 686 (3rd DCA 2011), the trial Court evaluated whether or not the children would be permitted to testify in camera (with the judge present without parties or witnesses) over the husband’s objection. There, the Court held: “In addition, the father’s request in this case for submission of the minor children to examination in the presence of counsel and/or parties, effectively superimposes his right to due process upon the best interests of the children. This is impermissible. The father’s request is particularly at odds with the truth-finding process where, as here, he is the subject of the minor children’s testimony. Thus, the only way to obtain the truth from the minor children is to conduct the interview outside the presence of the father. Clearly, the Florida Legislature has recognized that in situations such as the one before us today, the best interests of the minor children are paramount. As such, we find that the trial court’s decision was not a departure from the essential requirements of law. On remand, the father can request that a court reporter be present so that the children’s testimony is transcribed, thus permitting judicial review.”

Court have wide discretion in considering a party’s request for children to testify in a dissolution or time-sharing matter. As appellate courts have noted, the best interests of the minor children are paramount.

Religion Child Custody

Does religion matter in a child custody case?

In establishing a parenting plan, courts look to the factors in Florida Statutes §61.13. A court’s determination is governed by what is in the child’s best interests.

61.13(3), in relevant part, provides: 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:

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(f) The moral fitness of the parents.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
Religion Child Custody
In an interesting case, Abbo v. Briskin, 660 So.2d 1157 (Fla. 4th DCA 1995), prior to the marriage, the mother converted to Judaism. After the parties’ divorce, she reverted back to Catholicism. In the parties’ divorce, the trial court ordered that the mother “should not interfere in the development of the child’s Jewish religious training and upbringing, nor should she actively influence the religious training of the child in any other direction, other than the Jewish faith.” The appellate court noted that the trial judge’s injunction is not expressly founded on any fact relating to the physical or psychological welfare of the child. Rather it seems to flow from the court’s finding that the mother had agreed before marriage to convert to the Jewish faith. Thus the restriction is not grounded in a factual finding that an attempt to expose the child to Catholic teachings or to raise the child as Catholic would adversely and detrimentally affect her well-being or welfare. Equally, it is not based on any finding that it would beneficially promote her health or welfare if she were raised in Judaism.

The appellate court went on to note that, as with married parents who share diverse religious beliefs, the question of a child’s religion must be left to the parents even if they clash. A child’s religion is no proper business of judges. Id. at 1161. Clearly, a party would have to show the detrimental effects of a parties’ religion as it relates to their ability to parent the child or children. Also, as the appellate court notes, courts should be cautious in interfering with parents’ choice or religion, or their choice of religious instruction for their children.

Sexual Orientation Child Custody

Does sexual orientation (lesbian, gay, bisexual, transgender) matter in a child custody cases?

In establishing a parenting plan, courts look to the factors in Florida Statutes §61.13. A court’s determination is governed by what is in the child’s best interests.

61.13(3), in relevant part, provides: 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:

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(f) The moral fitness of the parents.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
Sexual Orientation Child Custody
In Jacoby v. Jacoby, 763 So.2d 410 (Fla. 2d DCA 2000), the court was faced with issues of religion and the mother’s sexual orientation. Specifically, there was testimony about the children’s religious teachings and the mother’s sexual orientation. The trial court also made comments, in its ruling, that the community generally has problems with individuals who are not heterosexual. The Court held that, for a court to properly consider conduct such as Mrs. Jacoby’s sexual orientation on the issue of custody, the conduct must have a direct effect or impact upon the children. See Maradie v. Maradie, 680 So.2d 538 (Fla. 1st DCA 1996). “[T]he mere possibility of negative impact on the child is not enough.” Id. at 543. The connection between the conduct and the harm to the children must have an evidentiary basis; it cannot be assumed. But even if the court’s comments about the community’s beliefs and possible reactions were correct and supported by the evidence in this record, the law cannot give effect to private biases. See Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984); cf. Department of Health and Rehabilitative Services v. Cox, 627 So.2d 1210 (Fla. 2d DCA 1993) (stating that private biases against homosexuality are not a permissible rational basis to support statute banning homosexuals from adopting), approved in part, quashed in part, 656 So.2d 902 (Fla.1995). Moreover, 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. See Conkel v. Conkel, 31 Ohio App.3d 169, 509 N.E.2d 983 (1987); M.P. v. S.P., 169 N.J.Super. 425, 404 A.2d 1256 (App.Div.1979). The appellate Court held that the circuit court’s reliance on perceived biases was an improper basis for a residential custody determination.

Security Deposit

How do I get my security deposit back from my landlord?

Many tenants (and landlords, for that matter) have some difficulty in interpreting Florida Statutes when it comes to the return of a tenant’s security deposit. Florida Statute §83.49(3)(a) provides guidance:

“Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant’s last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form:
This is a notice of my intention to impose a claim for damages in the amount of upon your security deposit, due to. It is sent to you as required by §83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord’s address).
Lease Agreement
If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit and may not seek a setoff against the deposit but may file an action for damages after return of the deposit.”

This statute applies to residential tenancies. There are separate statutes for commercial tenancies.

The residential portion of Florida Statues chapter 83 also addresses different kinds of rent payments, including advance rent payments. This could have a bearing on the return of rent payments, if a tenant vacates before the end of the term paid for. In Florida, if a lessee pays rent in advance and the lease is properly terminated by the lessor, then the lessor is not required to return the advance rental payment. See Atlantis Estate Acquisitions, Inc. v. DePierro, 125 So.3d 889 (Fla. 4th DCA 2013).

The wording of Florida Statute §83.49(3)(a) seems counter-intuitive. If the landlord does not plan to keep any of your security deposit, they have 15 days to return your money. But, if they do plan on keeping your funds, they have 30 days to notify you of their intent to keep your funds. Importantly, if a landlord fails to send a notice as required by this statute (i.e. within the 30 days), the landlord forfeits the right to keep the deposit. However, that same landlord can bring a lawsuit against the tenant for damages.

As always, it is important to contact a lawyer regarding your rights and responsibilities as a landlord or tenant.

Adultery

How Florida courts deal with adultery in divorce

My spouse is a cheater. I want to make him/her pay for this!

Well, first, you probably need to find another lawyer. If a person’s sole purpose in a divorce action is to “get back” at their partner, McNeal Legal, LLC might not be the right firm for you.

There are times when proving adultery IS relevant to a case, and certainly times when proving adultery is NOT relevant to a case.

Florida is a “no fault” divorce state. Neither party has to have a reason to get divorced, and the party filing need only state that there are “irreconcilable differences” or that the other party is mentally incompetent (legally speaking, not just that one party has this opinion of their spouse).

There are several instances where proving adultery can be very relevant to divorce proceedings, including the following:

1. An award of alimony. Florida Statutes §61.08(1) states, in part: “ The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded.” Certainly, the judge can consider the adultery when determining alimony. How much or how little the judge considers is up to each individual judge, and the facts of each case.
2. Child custody or time sharing: Florida Statues §61.13(3)(f) states, that the Court, in deciding parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, the Court can consider the “moral fitness” of the parties. So if one parent can prove that the other parent’s adultery had or is reasonably likely to have an adverse impact on the child, the judge might limit that parent’s custody or visitation. Again, this is totally within the discretion of the trail judge.
3. Equitable Distribution: Florida statutes §61.075(1)(i) states, in part, that the Court, in in addition to all other remedies available to do equity between the parties, in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including: (i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition. So, if one party can prove that the other had spent funds on a paramour during the course of the marriage, those funds may form the basis for an unequal distribution of marital assets and/or liabilities.
In Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA 1980), the Court found it was not a case in which an errant spouse destroyed a marriage and now wanted to claim benefits equal to those which would have been provided had it remained intact. The Court in Smith noted: “[E]vidence [of adultery may not] be employed merely to decrease or enhance an award by way of punishment for conduct of which the court may disapprove, when that conduct is not related to the equitable considerations with which dissolution courts should be concerned under our no fault law.”
Cheating Spouse
As it relates to child custody or time sharing, Courts have found that the possibility of a negative impact is not sufficient. Jacoby v. Jacoby, 763 So.2d 410 (Fla. 2d DCA 2000). In determining a party’s moral fitness for purposes of custody, the trial court should focus on whether the parent’s conduct has had or is reasonably likely to have an adverse impact. Packard v. Packard, 697 So.2d 1292 (Fla. 1st DCA 1997). Although one parent has committed adultery, it may be in the child’s best interest for that parent to receive custody. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). Adultery may or may not have a direct bearing on the welfare of a child of tender years. Id.; see also Farrow v. Farrow, 263 So.2d 588 (Fla. 2d DCA 1972)

While most people have the initial gut reaction to want their spouse to pay for the adultery, oftentimes, when people realize the cost associated with proving such claims versus the benefits, people tend to work more toward resolution than revenge.

The question for most people becomes an analysis of what is to gain from airing out the dirty laundry. Things that can possibly be gained from bringing forth an adultery claim as it relates to alimony or equitable distribution include additional funds from either (or not having to pay alimony or as much alimony), and more time with children in a time sharing plan.

The downsides to proving the adultery can include forever damaging the relationship with your ex-spouse (where children are involved), and possibly damaging the children, the expense associated with proving the adultery (oftentimes the use of a private investigator is required, which can get costly), and the difficulty of proving the adultery (many incidents of adultery involve hearsay testimony, which is not admissible; having eyewitnesses to the adultery, to the extent you would want to prove the adultery in order to alter the equitable distribution, alimony, or time sharing, are rare)

Contracts

Have an attorney review your contract before you sign

I oftentimes talk with existing clients about how important it is to be proactive in making business decisions. You would be surprised how many people come to my office AFTER having signed a contract (many worth hundreds of thousands of dollars) and say: “I just signed this contract. I have concerns about X, Y, or Z. Will you look at it for me?” My first response is: “If you had concerns, why didn’t you come to me or someone else BEFORE you signed the contract.” It is very important when you are entering into a contract to have an attorney review the contract, and discuss with you your legal rights and responsibilities. People often ignore certain “standard” parts of a contract or often feel that they have no ability to negotiate the terms of a contract.

Many terms of a contract are negotiable, and oftentimes, negotiating certain terms of a contract end up benefiting both parties in the end. I have reviewed several contracts where the person presenting the contract to my client used a form from someone else (i.e. no one had consulted an attorney), and didn’t realize there was an agreement that if a lawsuit was brought, venue was in an inconvenient location where neither party would want to litigate. Speaking with an attorney prior to signing a contract can also lead to possible different ways to achieve the same intent of the contract, without as much risk involved.
Contract Dispute
It also gives you the chance to talk with someone experienced who can advise you on what is in your best interest. I have often heard the phrase: “You can’t make a good deal with a bad person.” I am often surprised when someone (who has already signed a contract with a “bad” person) knew that person had failed to fulfill their obligations to previous parties. Most people would seek the advice of a doctor when making a significant medial decision. It is axiomatic that having the benefit of legal advice when entering into a contract where one is obligated to perform is almost necessary to protect one’s person and business interests.

In a recent case out of the 5th District Court of Appeal, Blue Earth Solutions v. Florida Consolidated Properties, LLC, 113 So.3d 991 (5th DCA 2013) the appellate court noted the case was “a classic example of what often occurs when parties attempt to consummate a complex business transaction without the benefit of legal representation. What makes this case especially remarkable is that this business transaction involved almost half a million dollars. Within twenty days after the so-called closing of the sale of business assets, the entire transaction unraveled, culminating in legal proceedings.” Having the advice and counsel of an attorney can help you avoid those situations and make the best possible decisions for you and your business.

Child relocation

They’re my children, can’t I just move with them?

Well…maybe. Florida statutes §61.13001 describes what a parent must do to relocate from their current residence with their child (assuming, of course, one parent is relocating and the other parent is staying in the same city/town/county).

The statute defines relocation as: “a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.”
Child Relocation
Of course, the parties can agree on a new-time sharing schedule if one parent is relocating. If the parties come to an agreement, it should be in writing. The statute provides: “the parties shall seek ratification of the agreement by court order without the necessity of an evidentiary hearing.”

If the parties don’t agree, “a parent or other person seeking relocation must file a petition to relocate and serve it upon the other parent, and every other person entitled to access to or time-sharing with the child.” This begins the full blown battle over where the children should reside. The Court then considers whether the relocation is in the children’s best interest.

Noteworthy, the statute contains the following provision: “Relocating the child without complying with the requirements of this subsection subjects the party in violation to contempt and other proceedings to compel the return of the child and may be taken into account by the court in any initial or post-judgment action seeking a determination or modification of the parenting plan or the access or time-sharing schedule.”

I have seen relocation cases where one parent obtains a new job or transfer, and the other parent, though divorced, moves to the new location with the first parent and children. I have also seen relocation cases where one parent decides to move with the children, and never complies with the provisions of this statute. In any case, it is important to consult with a lawyer regarding your obligations under this statute and work toward a resolution that is best for your children and family.

Clark Estate

Undue Influence and Fiduciary Breach Can Reverse Terms of Will In Probate, a quick look at Clark and McCormick

Recently, there has been much publicity surrounding the estate of Huguette Clark, and the heirs and beneficiaries fighting over the vast (roughly $300 million) estate. Interestingly, when reviewing the value of the estate and the amount of attorney’s fees distributed from the estate, I couldn’t help but think about the number of attorneys salivating to get hired to represent the parties involved.
Huguette Clark
Roughly two years after her death, the interested parties reached a settlement. Interestingly, the attorney’s fees to be paid from the settlement are almost $25 million. While that number seems staggering, it is roughly 8% of the total value of the estate.

In her original will, Ms. Clark made a provision for a significant amount to be distributed to her nurse and companion, Hadassah Peri. Ms. Peri had received a substantial amount of gifts during Ms. Clark’s lifetime (approximately $31 million). In the settlement, Ms. Peri agreed to pay back the estate $5 million over the course of 6 months. The settlement also provided that if any other assets totaling over $100,000 are determined to have been given from Ms. Clark to Peri or her heirs, the estate could seek the return of additional funds from Ms. Peri, leaving her obligation to the estate open.

This case brings to mind the fiduciary duties associated with probate matters and probate litigation. In a recent case from the 3rd District Court of Appeal of Florida, McCormick v. Cox, 118 So. 3d 980 (Fla. 3rd DCA 2013). McCormick, the attorney for the decedent, prepared two trusts. McCormick was also named as the trustee.

McCormick arranged for an appraisal of the property as of the decedent’s date of death. The appraiser reported a fair market value of the property, as an operating golf course, of $2,500,000. However, billing records provided by McCormick shows he had been working to convert the property from a golf course into residential property. The appraisal McCormick used on the decedent’s estate tax return did not reflect the best use of the property, nor did McCormick communicate with the beneficiaries about the value. The property ultimately sold for $12,000,000.

McCormick also did not provide a trust accounting report to the beneficiaries until April, 2005. The trial court found this to be a “significant breach of obligation”. Then, when the property did sell, McCormick instructed the closing agent to make separate distributions to the trust, primarily to fund “trustee’s fees”, totaling over $1 million. The beneficiaries ultimately filed a lawsuit against McCormick and his firm. After a trial of 8 days, the trial court ruled, and the appellate court later upheld, the removal of McCormick as trustee, that McCormick had breached his fiduciary duty, and required McCormick to repay funds to the trust.

The Court noted that McCormick’s extraordinary and unilateral payment to himself of a seven-figure fee from trust monies, without prior disclosures of alleged entitlement and amount to either the beneficiaries or the court, constituted a flagrant breach of duty. Even when the beneficiaries learned of the funds paid to McCormick’s firm and confronted him about the amount McCormick, instead of restoring the payments or placing the disputed funds in a separate account, simply retained the funds and waited for the beneficiaries to sue him.

The trial court required McCormick (and his firm) to pay back $2,146,812 in expenses incurred due to their undervaluation of the property, found the legal fees charged were unreasonable, and required disgorgement of $1,348,000 in attorney’s and trustee’s fees.