Under Florida law the starting point for every alimony determination, of course, is need and ability to pay. § 61.08(4).

At any final hearing the evidence presented must establish the requesting party’s need for alimony in some form. The party is entitled to a ruling on the propriety of present alimony amount if the party presents sufficient evidence of a present need.

Generally, “trial courts may not consider future or anticipated events in setting current alimony and child support amounts due to the lack of an evidentiary basis or the uncertainty surrounding such future events.” Nelson v. Nelson, 651 So. 2d 1252, 1254 (Fla. 1st DCA 1995); see also Arthur v. Arthur, 54 So. 3d 454, 459 (Fla. 2010).

For example, many professions have mandatory retirement ages. Just because one person may secure social security benefits, reduced or otherwise, people conitnue to work until the maximum retirement age is attained.

In one Florida case, the husband was in his early fifties at the time of the dissolution of marriage action. He was a commercial airline pilot subject to mandatory retirement. The trial court improperly denied permanent alimony solely because husband will be required to retire some ten years hence.

A person who is ordered to pay alimony is not excused from paying alimony because of retirement. Stated differently, retirement does not mandate termination of an alimony award. Suarez v. Sanchez, 43 So. 3d 118 (Fla. 3d DCA 2010) (reversing termination of seventy-nine-year-old obligor’s permanent alimony obligation upon his retirement because he failed to show that he could not afford to pay any amount or that the former wife was capable of self-support).

Retirement merely allows the trial court, upon proper motion, to revisit the parties’ respective needs and ability to pay as they relate to the underlying alimony award.

In fact, the trial judge can and should consider awarding a nominal amount of permanent periodic alimony in conjunction with the durational alimony award. See Nourse v. Nourse, 948 So. 2d 903, 904 (Fla. 2d DCA 2007). Such a combined award might minimize the need for litigation at the time of the husband’s retirement while preserving the ex-spouse’s right to support if she continued to have need.

Additionally, section 61.08(7) permits the extension of durational alimony if a party can demonstrate through exceptional circumstances the need for continued alimony. The trial court misinterpreted section 61.08(7) when it affirmatively denied Ms. Purin her statutory right to seek an extension of the durational alimony award.

The issues of alimony and a party’s continued need are not subjects that are often agreed upon during any voluntary or court ordered mediation. When those issues are in play, the parties are often going to stand their ground and let the trial judge make the ruling. Thereafter the party feeling aggrieved will generally appeal any ruling.

Any well intended judge cannot end litigation when an aggrieved party desires to keep the litigation going regardless of the person’s motives.

Men are going to want to stop paying alimony when the former wife starts living with another man or when another man lives with the former wife. The argument is that the former husband does not have to continue to pay the alimony if the former wife is in a “supportive relationship” with another person. Most marital settlement agreements (MSA) will contain language that if the former wife “cohabits with another male” the alimony will terminate.

The Former Wife challenges the trial court’s order that terminated the obligation of the Former Husband to pay permanent periodic alimony. The trial court based its order on a ruling that the Former Wife had been engaged in “cohabitation with a male” within the meaning of the parties’ Marital Settlement Agreement (the MSA).

The Former Husband cross-appeals. He challenges the trial court’s findings that the Former Wife was not engaged in a “supportive relationship” within the meaning of section 61.14(1)(b), Florida Statutes (2011), and that there was no substantial, permanent change in the circumstances of the parties that would support a reduction or termination of the alimony obligation.

Both the Former Husband and the Former Wife testified without objection at the final hearing concerning their respective understandings regarding the meaning of the clause in the MSA providing for the termination of the alimony obligation in the event the Former Wife cohabited with a male.

Unsurprisingly, this testimony was largely self-serving. The Former Wife expressed her understanding that the alimony would terminate only in the event that she lived with “a boyfriend” who helped to pay her bills.

The Former Wife emphasized that Mr. Doe did not qualify as “a boyfriend” and that he might move out of her home at any time. On the other hand, the Former Husband’s view was that the alimony was to terminate automatically if the Former Wife resided with any male nonrelative.

“A marital settlement agreement entered into and ratified by a trial court is subject to interpretation as a matter of law like any other contract.” Hobus v. Crandall, 972 So. 2d 867, 869 (Fla. 2d DCA 2007).

A trial court’s decision concerning whether or not cohabitation has been established involves a mixed question of law and fact. Thus in reviewing such a decision, we employ a mixed standard of review. Review of the trial court’s factual findings is limited to determining whether they are supported by competent, substantial evidence. Cf. Buxton, 963 So. 2d at 953.

In accordance with the provisions of the parties’ MSA, the Former Husband’s obligation to pay alimony was to terminate upon the Former Wife’s “cohabitation with a male.” There is no dispute that Mr. Doe had been living in the Former Wife’s residence from May 2010 through the date of the final hearing. The question that we are called upon to decide is whether the circumstances surrounding Mr. Doe’s presence in the home and the relationship between him and the Former Wife amounted to cohabitation within the meaning of the MSA.

However, our review of the trial court’s construction of the term “cohabitation” and its legal conclusions regarding whether cohabitation has been established is de novo. See Arnold, Matheny & Eagan, P.A. v. First Am. Holdings, Inc., 982 So. 2d 628, 632 (Fla. 2008); cf. Buxton, 963 So. 2d at 953. Upon a determination that cohabitation has been established, our review of the trial court’s decision to reduce or to terminate alimony is for abuse of discretion. Buxton, 963 So. 2d at 953; Zeballos v. Zeballos, 951 So. 2d 972, 974 (Fla. 4th DCA 2007).

What is Cohabitation?

We may look to dictionaries and the Florida case law to arrive at the meaning of the term “cohabitation.” Black’s Law Dictionary defines “cohabitation” as “[t]he fact or state of living together, esp. as partners in life, usu. with the suggestion of sexual relations.” Black’s Law Dictionary 296 (9th ed. 2009).

According to The Oxford English Dictionary, “cohabitation” means “[l]iving together as husband and wife (often with the implication of not being married).” 3 The Oxford English Dictionary 449 (2d ed. 1989).

This court had occasion to address the meaning of cohabitation in a case involving a marital settlement agreement providing that the husband’s obligation for alimony and child support would terminate at “such time as the wife shall remarry, die, or live with another person in a conjugal relationship.” Herrero v. Herrero, 528 So. 2d 1286, 1287 (Fla. 2d DCA 1988) (emphasis added). In considering the meaning of the contractual phrase, “live with another person in a conjugal relationship,” this court noted its agreement with the following proposition:

[C]ontract terms of this genre should be regarded as having principally an economic purpose. They are not meant to penalize an alimony recipient on moral grounds for indulging in an intimate relationship. Such agreements are intended to relieve a payor of alimony from further obligation under circumstances where the recipient is supporting another or receiving support from another in a state of cohabitation appropriate to the marriage state.

Because similar contract terms in marital settlement agreements are intended to protect the payor spouse from a continuing obligation to pay alimony when the payee spouse is residing with another person under circumstances similar or tantamount to marriage, a finding of cohabitation requires more than the mere presence of another person under the payee spouse’s roof.

Was Cohabitation Proven?

In this case, the Former Husband failed to establish that the Former Wife was cohabiting with Mr. Doe. Granted, at the time of the final hearing, Mr. Doe had been living in the Former Wife’s residence for more than three years. Nevertheless, the trial court specifically found that Mr. Doe was sharing the Former Wife’s home “as a tenant,” paying her “$400 per month in rent pursuant to a rental agreement.”

The trial court’s finding of fact that Mr. Doe was living in the Former Wife’s home as a tenant is supported by competent, substantial evidence. The $400 per month that Mr. Doe paid to the Former Wife was consistent with a sum paid by a lodger for the rental of a room in a house; the amount was not so great that it suggested a general sharing of all household expenses.

During the period of Mr. Doe’s residence, he and the Former Wife maintained separate bedrooms and they did not have an intimate relationship. Although the Former Wife and Mr. Doe were friends, the time that they spent together was limited. They did not generally take meals together. The Former Wife and Mr. Doe each had relationships with members of the opposite sex.

They did not hold themselves out as husband and wife. Mr. Doe did not assume any designated chores at the residence such as doing the dishes, vacuuming the carpet, or mowing the lawn. The Former Wife and Mr. Doe never pooled their money or resources.

On the Former Wife’s appeal, we reverse the order because the trial court erred in ruling that the mere presence of a male tenant in the Former Wife’s residence amounted to “cohabitation with a male” within the meaning of the MSA. We affirm on the Former Husband’s cross-appeal because the trial court’s findings with regard to the absence of a “supportive relationship” and a substantial change in circumstances are supported by competent, substantial evidence.

When a couple go their separate ways and the marriage ends, who pays off the parents who loaned their son or daughter and their son-in-law or daughter in-law money to get their new life together started? How does the mortgage payment that was being made from joint funds continued to be paid when he ex-wife or ex-husband gets exclusive use of the home? Also, who pays for the deductible for the children when the father gets more time with the children than the mother does?

Well, there goes that “amicable divorce” that I have heard of but I have never seen. The fact is that once there are children, money, property and hurt feelings involved there are lawyers, trials and appeals.

In one Florida case, the parties owned a marital home.during the trial of the divorce case, the trial court awarded the home to the former husband and ordered the former wife to execute a quitclaim deed of her interest to the former husband.

However, the home was mortgaged, and the trial court made no provision for the former wife to be relieved of liability for that indebtedness. We, therefore, reverse that part of the final judgment, and on remand, the trial court should direct that the former husband attempt to refinance the home to get the mortgage solely in his name within a reasonable time and include a hold harmless provision in the amended final judgment in the event the former husband is unable to obtain refinancing.

The trial court found that the parties owed the former husband’s parents an outstanding balance of $43,680 on an unsecured loan from the parents. Monthly payments had previously been made by the parties to repay the loan.

The trial court ordered that the former wife immediately pay her half of the debt from the marital assets she was awarded in the dissolution proceedings. However, there is no finding that the loan was overdue or that the repayment terms called for anything other than monthly payments.

Moreover, the trial court made no finding that the former wife was unwilling or unable to repay her share of the loan. See Mondello v. Torres, 47 So. 3d 389 (Fla. 4th DCA 2010). Therefore, on remand, the trial court shall make the necessary findings regarding the former wife’s ability and willingness to repay her half of the loan.

The parties have three minor children. The court made the former husband fully responsible for the $264 monthly insurance premium for the children but apportioned the uncovered medical expenses fifty-fifty.

As the former wife argues on appeal, this equal division of uncovered medical expenses was error where the former husband was given the children 60% of the time and the former wife received them 40% of the time.

Given that the support guidelines show the former husband should be responsible for 60% and the former wife 40% of the children’s support, those percentages should have been applied to the uncovered medical expenses. See Wilcox v. Munoz, 35 So. 3d 136, 141 (Fla. 2d DCA 2010) (“It is error for the court to equally divide the noncovered medical, dental, and prescription medication expenses when the court arrives at an unequal percentage share of child support.”); Salazar v. Salazar, 976 So. 2d 1155, 1157 (Fla. 4th DCA 2008) (“The trial court ordered the parties to equally divide any uninsured medical and dental expenses for the child despite determining Silvia’s percentage share of child support to be 36% and Orestes’s share to be 64%. We find this to be reversible error.”).

We, therefore, reverse that part of the judgment regarding uncovered medical expenses and remand for recalculation of the percentage of uncovered medical expenses for which each party is to be liable.

In addition, the monthly insurance premium payments made by the former husband should be factored into the support equation. Although it is proper to order one party to obtain the health insurance coverage, the court “is required by statute to apportion the cost of the insurance between the parties on a percentage basis.” Piedra v. Piedra, 126 So. 3d 1104, 1107 (Fla. 4th DCA 2012) (quoting Schoditsch v. Schoditsch, 888 So. 2d 709, 709 (Fla. 1st DCA 2004)).

Unfortunately, the guidelines worksheet the court used was not included in the record and, without it, this court cannot determine whether the trial court took into account the former husband’s payment of 100% of the insurance premiums. On remand, the trial court should re-examine this matter and attach the pertinent worksheets to the subsequent amended final judgment to support its conclusions.

The trial court denied the former wife’s motion for attorney’s fees. The former wife argues that because of the disparity in the income of the parties, it was an abuse of discretion to deny her fees. We agree.

On remand, the trial court is to reconsider the former wife’s entitlement to fees in light of her lower income.

We, therefore, reverse those portions of the final judgment previously discussed and remand for further proceedings consistent with this opinion. In all other respects, the final judgment is affirmed.

F. S. 742.14 Donation of eggs, sperm, or preembryos.—The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement under s. 63.212, shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children. Only reasonable compensation directly related to the donation of eggs, sperm, and preembryos shall be permitted.

Despite the clear wording of the law a sperm donor wanted to expand the reach of the statue and filed an amended paternity action asserting that he be declared the biological father that was born to the woman. The lower court dismissed his petition with prejudice and awarded the woman attorney’s fees on the basis that the sperm donor who filed the petition knew or should have known that he did not enter into any written agreement as required by the statute thus limiting his ability to assert any rights to the child.

However, we conclude that the trial court erred in awarding attorney’s fees to A.L.H. pursuant to section 57.105, Florida Statutes (2012). The court found that B.W.P. knew or should have known that his petition and amended petition were “insufficient on the facts and the law.” Section 57.105(3) states that notwithstanding whether an action is not supported by the facts or the application of then-existing law, fees may not be awarded if the claim “was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.”

As recognized by the Fourth District, attorney’s fees should not be awarded pursuant to section 57.105 when the losing party attempted in good faith to advance a novel question of law. Vasquez v. Provincial S., Inc., 795 So. 2d 216, 218 (Fla. 4th DCA 2001) (“Florida favors access to the courts and has interpreted section 57.105 to provide a remedy only where the plaintiff’s complaint is completely untenable. An award of attorney’s fees is not appropriate as long as the complaint alleges some justiciable issue.”).

In his petition, B.W.P. attempted to advance a novel question of law. See generally D.M.T. v. T.M.H., 129 So. 3d 320, 328 (Fla. 2013) (holding section 742.14 “unconstitutional as applied under the Due Process Clauses of the Florida and United States Constitutions and under the privacy provision of the Florida Constitution”); Jason P. v. Danielle S., 171 Cal. Rptr. 3d 789, 797-98 (Cal. Ct. App. 2014) (deciding that sperm donor could not rely on doctrine of equitable estoppel to argue that the mother was not entitled to the protection afforded her under California’s statute addressing the rights of a donor).

Accordingly, we affirm the order dismissing B.W.P.’s amended petition to determine paternity with prejudice, but we reverse the order granting A.L.H. an award of attorney’s fees pursuant to section 57.105

B.W.P. and A.L.H. agreed that she would be artificially inseminated without the help of a fertility clinic.

Affirmed in part; reversed in part. (KHOUZAM and MORRIS, JJ., Concur.)

The failure to pay child support is common and part of the consequences of divorce with children. The Florida court system addresses only a few of the countless cases where one parent or the other fail to pay for the support of the children from the marriage or from the relationship. Absent, serious illness, death or incarceration, those payments should be the first check written each month.

Many custodians of the children just give up and never seek help in enforcement of the other parent’s obligation to pay child support or seek some help from the State of Florida. Thereafter the State of Florida, will seek revocation of the obligor’s driving privileges to get his or her attention.

In one Florida case, the parties had a long history before this Court. In 1995, this Court reversed the trial court’s order which improperly attributed incorrect annual incomes to both parties and remanded for a proper calculation of support payments. See Lascaibar v. Lascaibar, 658 So. 2d 170 (Fla. 3d DCA 1995).

After remand, the trial court entered a commitment and final judgment against the Father for the balance of unpaid child support plus interest, and adjudicated the Father in contempt.

In 1998, this Court held that the trial court’s order of contempt, commitment, and final judgment failed to take sufficient action to support payment of the arrearages and remanded with instructions to issue a rule to show cause pursuant to Florida Rule of Criminal Procedure 3.840. See Lascaibar v. Lascaibar, 715 So. 2d 1042 (Fla. 3d DCA 1998).

The Father was subsequently acquitted of criminal contempt, and the Mother appealed the acquittal. This Court dismissed the appeal as “[a] judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed . . . .” Lascaibar v. Lascaibar, 773 So. 2d 1236, 1236 (Fla. 3d DCA 2000).

In March 2010, the Mother filed a petition for modification of child support and custody. The general magistrate recommended that the Father owed the Mother child support arrears totaling $82,845.98 as of March 8, 2010, and that “[p]re-judgment interest has and shall continue to accrue on any outstanding arrearage at the statutory rate.” The trial court subsequently ratified the general magistrate’s recommended order. No appeal was taken from the trial court’s order ratifying the general magistrate’s report and recommendations.

In November 2012, the Father filed a motion to terminate child support, arrearage payments, and income deduction, to close the central depository account, and for an accounting of arrears. The Mother contended that the central depository failed to calculate, collect, and disburse the interest that was supposed to accrue on the arrearages pursuant to the 2010 trial court order.

The general magistrate submitted a report and recommendations holding that: (1) the 2010 order made a specific finding that the Father owed $82,845.98 as of March 8, 2010; (2) the arrears had been fully paid off; and (3) the Father was entitled to have the account and case closed.

The Mother filed exceptions to the general magistrate’s report and recommendations, repeating her argument that the central depository failed to apply the interest on the support payments in arrears as mandated by the 2010 order. Although the Mother sought interest payments going back to the inception of the child support payment schedule, the trial court indicated that it was bound by the sum of $82,845.98 in arrears pursuant to the 2010 order, and that it would not consider anything prior to 2010. The trial court subsequently entered an order denying the Mother’s exceptions to the general magistrate’s report and recommendations, and this appeal ensued.

We find that the general magistrate’s recommendations are clearly erroneous, as the Mother was entitled to prejudgment interest in accordance with the April 2010 order.

The trial court therefore abused its discretion when it denied the Mother’s exceptions to the general magistrate’s January 2013 recommendations. Accordingly, we reverse the trial court’s Order Denying Exceptions to Report and Recommendations of General Magistrate/Hearing Officer and Order on Report of General Magistrate.

On remand, the Mother should be permitted to present evidence as to the amount of interest that accrued only from April 2010 through August 2012 — the date the Father submitted the final lump-sum payment of $38,869.03 to the registry. See Applegate v. Applegate, 566 So. 2d 865, 866 (Fla. 1st DCA 1990).

It is not uncommon for men to father many children with different woman and not be married to any of the women. Clearly, the father of all the children has a reduced ability to support each child but what about the first child’s support being reduced by the costs of supporting the other children. Can the father argue that each child’s support obligation is to burdensome because of each subsequent child that is born? What about the argument of each mother that the support of my child is equally important to my child as the first child. What is the judge to do ?

In Florida, the father who seeks a downward departure of his court ordered child support has a burden of proof which he must meet before any such order is entered lower his child support.

The father seeking such a reduction has the burden of establishing the following:

(1) a substantial change of circumstances,

(2) not contemplated at the time of the final judgment of dissolution or, as in this case, an order determining paternity,

(3) that is sufficient, material, involuntary, and permanent in nature. Overbey v. Overbey, 698 So. 2d 811, 814 (Fla. 1997); Burkley v. Burkley, 911 So. 2d 262, 268 (Fla. 5th DCA 2005); Laliberte v. Laliberte, 698 So. 2d 1291, 1293 (Fla. 5th DCA 1997).

The courts in Florida have held that fathering a child is not an involuntary act. Absent some special circumstance, the presence of subsequent children will not justify a deviation from child support guidelines. See § 61.12(b), Fla. Stat. (2013); State, Dep’t of Revenue v. Feeney, 689 So. 2d 350, 351- 352. (Fla. 2d DCA 1997); Robinson v. Robinson, 657 So. 2d 958, 960 (Fla. 1st DCA 1995).

In Florida, the upward modifications of child support are treated differently. See § 61.12(b), Fla. Stat. (2013); Pohlmann v. Pohlmann, 703 So. 2d 1121, 1124 (Fla. 5th DCA 1997).

The obligation to support a child is not dependent on marriage but upon DNA findings. DNA labs are reasonably priced and the results are most accurate when the father, birth mother and child’s DNA samples are tested. The cost is reasonable and it is serves to remove all doubt in support and paternity matters that would otherwise be contested.

The fact is that those fathers that fail to support the child which each has fathered will be surprised to lean that each birth mother will be entitled to receive benefits from the State of Florida which will then seek the repayment of that money from the birth father. This back child support that is owed will be the basis for a license suspension which will get the attention of the non-paying father. The criminal offense of driving with a suspended license will quickly get the non-paying father in jail and more willing to pay something to the state of Florida to get out of jail.

It is common for the wife to be given the exclusive use of the home during the entire time the divorce is proceeding through the court system. Sometimes the divorce can take years to conclude and even involve multiple appeals. It is unfair that the spouse who is not in possession is denied any rental income of the property since the party awarded exclusive use and possession is not paying rent.

In one Florida case, the husband asked that the the he be credited with a set off for the reasonable rental that he could have received during the equitable distribution of assets by the Judge. The trial court denied the husband’s request. In addition, the trial judge ordered the husband to maintain a life insurance policy in the amount of $100, 000 with the ex-wife as beneficiary to pay to secure alimony for the ex-wife should the husband suddenly die.

The former husband appeals several aspects of the final judgment of dissolution of marriage dissolving the union between him and his former wife. The appellant raises four issues on appeal. Because the trial court’s order did not reflect that it considered (i) the factors in section 61.077, Florida Statutes (2010) when it denied the appellant’s request for a set off of the amount of the fair rental value of the former marital home and (ii) evidence of the reasonable availability of insurance, the cost thereof, or appellant’s ability to pay before requiring that the husband maintain a $100,000 life insurance policy, we reverse and remand for further proceedings.

With respect to the granting of credits or setoffs relating to the sale of the marital home, section 61.077, Florida Statutes (2010), provides:

A party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties’ settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributing assets or debts specifically provides that certain credits or setoffs are allowed or given at the time of the sale. In the absence of a settlement agreement involving the marital home, the court shall consider the following factors before determining the issue of credits or setoffs in its final judgment:

(1) Whether exclusive use and possession of the marital home is being awarded, and the basis for the award;

(2) Whether alimony is being awarded to the party in possession and whether the alimony is being awarded to cover, in part or otherwise, the mortgage and taxes and other expenses of and in connection with the marital home;

(3) Whether child support is being awarded to the party in possession and whether the child support is being awarded to cover, in part or otherwise, the mortgage and taxes and other expenses of and in connection with the marital home;

(4) The value to the party in possession of the use and occupancy of the marital home;

(5) The value of the loss of use and occupancy of the marital home to the party out of possession;

(6) Which party will be entitled to claim the mortgage interest payments, real property tax payments, and related payments in connection with the marital home as tax deductions for federal income tax purposes;

(7) Whether one or both parties will experience a capital gains taxable event as a result of the sale of the marital home; and

(8) Any other factor necessary to bring about equity and justice between the parties.

The appellate court determined that the final judgment is silent concerning the former husband’s entitlement to a credit or setoff for half the rental value of the former wife’s exclusive use and possession of the marital home.

The final judgment does state that “[a]ll proceeds from the sale of this residence shall be equally divided by the parties after accounting for the expenses allocated to each party as stated above.” (emphasis in original).

The trial court also explained at the close of day three of the trial that it was electing not to charge the former wife for the fair rental value of her exclusive use and possession of the marital home because she would be solely responsible for the utilities from July 1, 2013, the other expenses were evenly split between the parties, and she was now paying half the costs associated with the parties’ yacht.

The statute is clear, however, that the eight factors enumerated in section 61.077 “shall be considered before determining the issue of credits or setoffs in [the] final judgment.” The record does not establish that the trial court considered those factors in the context of the credit/setoff issue, requiring remand for further proceedings. On remand, the trial court should specifically address the factors enumerated in section 61.077 and determine whether the former husband is entitled to a credit or setoff regarding the marital home.

Additionally, while section 61.08(3), Florida Statues (2010), authorizes a trial court to “order any party who is ordered to pay alimony to purchase or maintain a life insurance policy . . . [to] secure such alimony award,” in Payton v. Payton, 109 So. 3d 280, 283 (Fla. 1st DCA 2013), we reversed and remanded the portion of a final judgment of dissolution of marriage that ordered a husband to maintain a $50,000 life insurance policy to secure a support obligation where “no evidence was adduced regarding the reasonable availability of life insurance, the cost thereof, or his ability to pay.” See also Winney v. Winney, 979 So. 2d 396, 400 (Fla. 1st DCA 2008) (“A trial court may not order a party to obtain life insurance without making factual findings regarding the necessity of such coverage. Such findings must reflect consideration of the cost and availability of such insurance.”) (citations omitted).

Here, the record contains no evidence as to the availability, cost, or the former husband’s ability to pay for life insurance. We are constrained by our precedent to reverse the portion of the final judgment requiring the former husband to maintain life insurance and remand to allow the trial court to make the necessary findings. See Payton, 109 So. 3d at 283; see also Winney, 979 So. 2d at 400.

Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion. On remand, the trial court may reconsider the equitable distribution, as well as the child support and alimony awards, if necessitated by the final disposition of the credit/setoff and life insurance issues.

Parenting plans must be a part of every dissolution and separation where minor children are involved. The parties generally litigate the terms of a parenting plan because of issues involving the receipt of more money from the other spouse hte more time the child is being cared for by the other parent. ‘

Generally, when one spouse is unhappy with the performance of the other spouse when the other spouse has custody of the child, then the matter goes to the judge on a motion for contempt.

Such was the case when the husband convinced the trial judge to find the ex-wife in contempt when she failed to take the children to medical appointments. The judge held in contempt and held that she was fully responsible for paying he total costs of the missed appointments. In addition, the lawyer for the ex-husband persuaded

The former wife appeals from an amended final judgment of dissolution of marriage. The Appellate Court reversed the portion of the order making the former wife responsible for the full cost of missed or canceled appointments required under the parenting plan.

In context of the remainder of the order, this directive operates as an automatic, prospective sanction without an opportunity to be heard as to whether any missed or canceled appointments are the result of the former wife’s intentional failure to obey a court order, which is improper. Cf. Rojo v. Rojo, 84 So. 3d 1259, 1262 (Fla. 3d DCA 2012) (reversing contempt sanctions for the former wife’s failure to send a child to visit her father where there was no showing that she had the ability to do so); see Rickard v. Bornscheuer, 937 So. 2d 311, 311 (Fla. 4th DCA 2006) (requiring notice and an opportunity to be heard before the imposition of sanctions).

We also reverse the portion of the order imputing income to the former wife and remand the case to the trial court to reconsider that issue. The finding that the former wife has the ability to work full-time is not supported by competent, substantial evidence.

Undisputed evidence, including the list of appointments the former husband agreed were necessary for the former wife to keep during the work day, indicated to the contrary, and the court erred in failing to account for the travel time required to keep appointments occurring at 5:00 p.m. or shortly after.

Additionally, the court’s ruling does not reflect any consideration of the appointments the former wife is required to attend without the children or of the children’s medical appointments.

For the foregoing reasons, we reverse outright the provision requiring the former wife to bear the full cost of missed and canceled appointments, and we reverse the imputation of income and remand for further consideration of that issue. We affirm the remainder of the order.

Many consumers will go foreword without lawyers when the divorce proceedings may require many visits to the Judge and the hiring of a lawyer is impossible for the amount of time the client seeks the lawyer to devote to litigating every point of contention between the parties. Many times the male will seek to control whether the former wife lives with another man with the former husband’s child and insists that the matter be taken to the judge even when told that the judge will not remove the child from the situation absent real evidence that the child’s welfare is at risk by living in the new environment with the man.

There is not a marriage that is entered into that the parties ever expect to be divorced but when it happens the soon to be ex-spouse will be seeking alimony of some kind. It is rare that the issue of who gets what and alimony are not in issue. The truth of the matter is that if there are no assets, money or children, a divorce is simply a breeze.

The formula for war is money, children, property, stocks, and adultery which is an emotional issue not of any financial consequences to the parties unless marital money was expended in large amounts which diminishes the other spouse’s share of the equitable distribution.

Included herein is the section of the Florida Statutes setting forth the factors used to determine alimony in Florida. In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:

(a) The standard of living established during the marriage.

(b) The duration of the marriage.

(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, including income available to either party through investments of any asset held by that party.

(j) Any other factor necessary to do equity and justice between the parties.

In one Florida case, the ex-spouse attempted to argue under exceptional circumstances that alimony could in “exceptional circumstances” that alimony could exceed the length of the marriage. The trial judge agreed and extended the time that the former husband was to pay durational alimony to the former spouse. The marriage that ended in divorce was only three years in duration.

Section 61.08(7) specifies that the length of an award of durational alimony “may not be modified except under exceptional circumstances and may not exceed the length of the marriage.”

The court of appeals rejected the former wife’s argument that under exceptional circumstances, the term of an award of durational alimony may exceed the duration of the marriage. This “equitable” argument fails because of the clarity of the statute.

That portion of the award of durational alimony setting the term of the monthly payments at 48 months is reversed and remanded for a reduction to 40 months, the statutory limit.

Any divorce with children and assets requires the retention of an attorney with the training, knowledge and experience to properly advise and represent you in the courtroom.

Most divorces are contentious. When there is money and children all bets are off as to the cost and length it will require to bring any divorce to a conclusion. This is truly why your lawyer can never tell you “how much is this going to cost” or “how long will it take.”

When a judge is faced with overnight visitation requests for young children the lawyer requesting such overnight visitation with either spouse must present evidence that such overnight visitations are in the best interest of the child or children and not just want one of the litigant’s desires.

In one Florida case, the mother was being allowed supervised visitation with her two minor children at a visitation center. The reasons for the supervised visitation was that the children were traumatized by either some conduct by the father or the abusive conduct of the mother. In any event, supervised visitation with the children was required by the Judge whenever the mother visited the children. . At this point in the proceedings, the Husband had majority time-sharing with the parties’ two young children.

The mother’s lawyer moved for overnight visitation with her two children rather than the more restrictive supervised visitation that had been previously ordered the Trial Judge granted the mother’s motion. In addition, to make matters worse, the father was in the military was ordered to relocate to another state.

The Trial Court made additional rulings finding that the evidence supported relocation and granted the Husband’s petition to temporarily relocate. The court also awarded the Husband temporary majority time-sharing.

The court recognized that relocation would make reunification with the Wife even more difficult so it ordered daily phone contact between the Wife and children and awarded the Wife time-sharing for one weekend a month.

The Wife’s time-sharing would be supervised by the Wife’s mother (the Grandmother) at her home in Orlando. The court ordered the Wife to select a counselor and schedule monthly counseling sessions with the children during her time-sharing, and it required the parties to split the costs of counseling equally.

Among other things, the court also ordered the Husband to submit to a psychological evaluation, ordered the Husband to pay $500 monthly toward his share of counseling expenses for the Wife and children, and denied the Husband’s request to discharge the guardian ad litem (GAL).

Section 61.13(3), Florida Statutes (2013), provides that the primary consideration in establishing a time-sharing schedule shall be the best interests of the children. The record does not contain any evidence that the monthly overnight visits with the Wife are in the children’s best interests.

In fact, the record contains evidence that the children exhibited fear of the Wife, they had not seen the Wife in months, and prior supervised visits with her were difficult and generally unsuccessful.

It appears that the children were traumatized, and there is no evidence to suggest that the children could endure supervised time-sharing at the Grandmother’s home for an entire weekend. Furthermore, there was no evidence as to the Grandmother’s ability or desire to supervise the overnight time-sharing at her home.

As to the $500 monthly counseling payment, the order on appeal requires the Husband to make the payment “to [the] Wife’s attorney’s trust fund to cover his share of counseling expenses.” The order finds that the Husband has the ability to pay this “security deposit” and cites section 61.13001(6)(d), as authority for this provision.

The Husband argues the provision is not authorized by section 61.13001(6)(d) because the court orally declined to require the Husband to post a security bond under that provision. He also argues that there was no testimony regarding the cost of counseling to support the $500 payment.

Section 61.13001(6)(d) authorizes a court that approves a temporary relocation to “require the person relocating the child to provide reasonable security, financial or otherwise, and guarantee that the court-ordered contact with the child not be interrupted or interfered with by the relocating party.” The Husband is correct that the trial court orally assured the Husband that he would not be required to post a bond under this provision. And while the court’s order refers to a “security deposit” and cites to section 61.13001(6)(d), it specifies that the $500 monthly payment is for “counseling and other related costs,” not security.

Regardless of whether the court mischaracterized the $500 monthly payment as a security deposit, we recognize that the court had the discretion and intended to require the Husband to pay half of the children’s psychological counseling fees. See § 61.13(1)(b). But even if the $500 monthly payment requirement was properly characterized as such, we must reverse that portion of the order because there was no evidence regarding the cost of counseling and “related costs.” See Dinsmore v. Dinsmore, 623 So. 2d 638, 638 (Fla. 1st DCA 1993) (affirming the award of $4003.15 in medical expenses because it was supported by competent, substantial evidence).

In summary, we affirm the order on appeal with the exception of the provisions awarding the Wife monthly supervised overnight time-sharing and requiring the Husband to make a $500 monthly deposit towards unknown counseling expenses. On remand, the court shall reconsider the Wife’s temporary time-sharing schedule. The court may receive additional evidence on this issue if it deems it appropriate.