Articles Posted in Enforcement (Divorce/Post Final Judgement)

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1040136_justice_srb_1 sxchu.jpgFlorida’s Third District Court of Appeals has ruled that attorney’s fees may be awarded pursuant to Section 61.16(1) of the Florida Statutes in a marital property settlement agreement enforcement action. In De Campos v. Ferrara, a former married couple dissolved their marriage in 1991. As part of the dissolution action, the parties entered into a property settlement agreement that required the former wife to pay her ex-husband one-half of the sale proceeds for a business the couple owned during their marriage. Although the business was not immediately sold, the trial court retained jurisdiction to enforce the parties’ settlement agreement.

In 2008, the wife sold the business, reportedly without telling the husband. He subsequently sought relief from the trial court that included a temporary injunction and an order compelling payment of his half of the sale proceeds. Although the wife argued that she previously disposed of the business by incorporating it into a new business and paying her former husband $48,000, the trial court disagreed. Instead, she was ordered to pay her former spouse one-half of the proceeds from the 2008 sale.

In 2009, the former husband filed a petition with the trial court for an award of attorney’s fees and other costs. The trial court denied his petition based on Flanders v. Flanders, stating that the action was “an equitable declaratory proceeding to construe and enforce the parties’ Property Settlement Agreement.” According to the trial court, Section 61.16(1) of the Florida Statutes did not apply to the parties’ case and the husband was not entitled to attorney’s fees since the property settlement agreement was silent on the matter.

On appeal, the Third District reversed the trial court by stating the matter was simply an enforcement action for a final judgment previously entered by the trial court. According to the Appeals Court, there was no ambiguity regarding whether the husband was entitled to proceeds from the sale of the business. Additionally, his former wife did not contest his rights. Instead, she merely contested whether her obligations under the property settlement agreement were previously satisfied. The Appellate Court stated Flanders did not apply to the case at hand because the proceeding was not a declaratory action. According to the Third District, Section 61.16(1) applied to the parties’ case because the court was merely being asked to enforce a marital property settlement agreement in a divorce matter filed pursuant to Chapter 61 of the Florida Statutes.

The Appeals Court also found the husband may be entitled to attorney’s fees because neither party expressly waived their statutory right to such an award in the property settlement agreement. Additionally, there was no implied waiver because the agreement failed to contain any language regarding an award of attorney’s fees. Since Section 61.16(1) applied to the case and governed any award of attorney’s fees, Florida’s Third District reversed and remanded the matter to the trial court.
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The purpose of civil contempt is to obtain compliance with a child support, alimony or general court order and can only be used when the contemnor has the ability to comply.

First, your divorce lawyer in Fort Lauderdale must have the court determine whether the defaulting party has willfully violated the court order. Next, the court must determine the appropriate remedial measure. If the Florida marital and family law judge orders that the contemnor is to be jailed, the court must make a specific finding that he or she has the present ability to pay the purge.

In Aburos v Aburos, the former husband appealed an order finding him in indirect civil contempt and requiring him to be incarcerated which was entered by Miami divorce court Judge Amy Steele Donner for failing to pay the former wife alimony and child support pursuant to the Final Judgment of Dissolution of Marriage. Specifically, the former wife asked the trial court to find the former husband in contempt of court for his failure to pay $1,700 per month for permanent periodic alimony and $1,693 per month in child support.

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Sandy T. Fox, Esquire, a divorce lawyer in Broward and Miami-Dade, represented the Former Wife in an enforcement proceeding in the Florida marital and family law court located north of Fort Lauderdale. The equitable distribution provision of the marital settlement agreement provided that the Former Wife was to receive $141,263.72 from the Former Husband. The Former Husband retained his real property in New York. While no date of payment to the Former Wife was specified in the marital settlement agreement, the final judgment of dissolution of marriage ordered the parties to comply with the marital settlement agreement.

The Former Wife filed a motion to enforce the equitable distribution provision of the final judgment since the Former Husband had only made 5 incremental payments. At the hearing, she testified that she was to receive $141,263.72 upon entry of the final judgment. On the otherhand, the Former Husband testified that the Former Wife was to be paid upon the sale of his New York property.

On appeal in the case of Crespo v. Crespo, the Former Wife argued that the trial court erred in admitting parol evidence as to the intent of the parties. In affirming the decision of the divorce court located north of Ft. Lauderdale, the Fourth District Court of Appeal found that the marital settlement agreement contained a latent ambiguity since it failed to specify the time in which the Former Wife was to receive payment from the Former Husband. The court explained that a latent ambiguity arises when the language in a contract is clear and intelligible and suggests a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.