Take for instance a current Albaugh Law Firm client, age 79, facing a charge of trafficking in oxycodone.  Currently this charge carries a 3-year minimum mandatory prison sentence.  Given his age and health this could turn into a life sentence.  However, under the new legislation he would be eligible for probation if convicted.

Contact the Albaugh Law Firm today at 904-823-1717 if you, a friend, or loved one is facing a minimum mandatory prison sentence to see if this new legislation could help them avoid prison.

Check back for updates on whether or not this legislation becomes law, and for other changes that may effect you.

CHILD SUPPORT CALCULATIONS

Is the other parent in your case currently getting a reduction in child support based on a time-sharing schedule that gave them 40% or more of the overnights each year? Your child support may need to be recalculated and modified.

The previously used 40% (or 146 overnights) rule has been removed from the child support calculation. The new calculation for child support uses the “gross up method” when both parents have at least 20% (or 73) of the overnights in a year. A modification of your child support may be warranted based on this change in the law.

In addition, effective January 1, 2011 Section 61.30(11)(a)11(b)8 is amended so that “SUBSTANTIAL AMOUNT OF TIME” means that a parent exercises time-sharing at least 20% of the overnights of the year.

A parent’s failure to regularly exercise the court-ordered or agreed time-sharing schedule (when the failure is not caused by the other parent) which resulted in the adjustment of the amount of child support shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph is retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule.

Is the other parent in your case providing false or misleading financial information to you or the court, or are they failing to provide any information at all? We can argue the court should impute the highest income supported by the facts to the other parent to ensure child support is calculated correctly.

Effective January 1, 2011 Section 61.30(2), Florida Statues, which addresses IMPUTED INCOME for the purposes of calculating child support is amended as follows:

If the information concerning a parent’s income is unavailable, a parent fails to participate in a child support proceeding, or a parent fails to supply adequate financial information in a child support proceeding, income shall be automatically imputed to the parent and there is a rebuttable presumption that the parent has income equivalent to the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census. However, the court may refuse to impute income to a parent if the court finds it necessary for that parent to stay home with the child who is the subject of a child support calculation or as set forth below:

1. In order for the court to impute income at an amount other than the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census, the court must make specific findings of fact consistent with the requirements of this paragraph. The party seeking to impute income has the burden to present competent, substantial evidence that:
2. The unemployment or underemployment is voluntary; and
3. Identifies the amount and source of the imputed income, through evidence of income from available employment for which the party is suitably qualified by education, experience, current licensure, or geographic location, with due consideration being given to the parties’ time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.
4. Except as set forth in subparagraph 1, income may not be imputed based upon:
5. Income records that are more than 5 years old at the time of the hearing or trial at which imputation is sought; or
6. Income at a level that a party has never earned in the past, unless recently degreed, licensed, certified, relicensed, or recertified and thus qualified for, subject to geographic location, with due consideration of the parties’ existing time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

Is your child in child care? Your child support may need to be recalculated and modified.

Effective January 1, 2011 Section 61.30(6), Florida Statues, is amended so that the 25% reduction that was previously considered when calculating WORK RELATED CHILD CARE costs is no longer a factor.

Instead, we will now calculate each parents’ costs of work related child care based on his/her percentages of the combined net income.

CHILD ABDUCTION / KIDNAPPING

Has the other parent taken and/or withheld your child without permission from you or the court? We can ask the court to use its recently increased power to help us get your child back.

Effective January 1, 2011 Section 61.45 is amended and the “CHILD ABDUCTION PREVENTION ACT” outlines the courts increased authority relating to child abduction prevention.

If you would like to discuss how these changes in the law or any other issues may effect your case, call the Albaugh Law Firm at 904-823-1717 for a free initial consultation.

On October 12, 2010, Department of Children & Families’ (DCF) Director, George Sheldon, announced that the agency will not appeal the September 2010 court ruling which struck down Florida’s ban on gay and lesbian adoption as “unconstitutional.”  In an official statement from DCF spokesman Joe Follick, he made clear that the 33 year ban on gay and lesbian adoption is ending. “The Court opinion is binding on all trial courts and therefore provides statewide uniformity. The ban on gay adoption is unconstitutional statewide,” Follick said.  The impact of this decision by DCF not to appeal is that it is now legal for gay and lesbian parents to adopt children in the state of Florida.

Gay and lesbian Floridians seeking to adopt children will now be evaluated on the same criteria as heterosexual people.  This change is evidenced by a DCF directive that was sent to department heads statewide that reads:  Based on the ruling that the current law is unconstitutional, you are no longer to ask prospective adoptive parents whether they are heterosexual, gay or lesbian, nor are you to use this as a factor in determining the suitability of applicants to adopt. Focus your attention on the quality of parenting that prospective adoptive parents would provide, and their commitment to and love for our children.

If you have questions about this change in the law or how it may affect you or your rights, please contact us today for a free consultation.

House Bill 795 established an amnesty period for Habitual Traffic
Offenders whose revocation results from a third driving while license suspended violation that occurred prior to July 1, 2010. The amnesty period begins October 1, 2010 and ends June 30, 2011.

The intent of the legislation was to allow these drivers to provide
proof of compliance for the underlying sanction, which would result in the removal of the HTO status.

Changes to Child Support Calculation Formula

A new statute has been signed by the Florida Governor, Charlie Crist – making significant changes to the child support system in Florida. Florida child support is based on a mathematical calculation.

The main factor that goes into that calculation is the Gross Income of both parents. In the old system, child support ended when each child reached the age of 18 (or 19 if still in high school). But there was a big problem that came up when the minor children reached 18. The old statute was set up to require parents file a petition, return to court and to seek an order ending child support. If there were multiple children, the law required a parent to seek an order recalculating the amount of child support each and every time one of the children reached adulthood. The effect of the old support statute was to create a huge financial hardship for parents.

Frequently, parents had to go back to court multiple times as each child became an adult. Human nature caused an additional problem: parents facing a required return visit to court always seem to want changes in parenting time. The end result was a series of court fights throughout the life of both parents. The new statute provides a solution to this long standing problem.

Beginning on October 12st, 2010 (certain provisions start on January 1st, 2011) (as of this writing), child support orders must be written differently. Any new child support order shall list the date the support will self-terminate. Normally, that date would be the 18th birthday of the child – or an alternate date based on extenuating circumstances. If there are multiple children, the order must contain a breakout of support amounts for each child, and a schedule of dates showing when the support for each child terminates.

The bottom line: parents will not be required to return to court when their child becomes an adult. The other big change affects the amount of child support – and how that amount is customized for each parenting situation. In the old system, child support was calculated by a standard formula for most situations.

But when the non-majority parent (non-custodial parent) had a certain amount of overnights with the child – the support calculation used a different formula. This alternate formula resulted in a drastically lower support number. The amount of overnights needed to trigger the alternate formula was 146. This resulted in continous battles between parents. While one parent fought for overnight parenting time exceeding 146 nights, the other parent fought back trying to stay below that number. The real fight in everyone’s mind was over money.

The new statute changes the trigger point from 146 overnights to 73 overnights. Because most non-custodial parents enjoy at least 73 overnights of parenting time – most situations will qualify for the alternate support calculation. That alternate calculation is called “Substantial Time Sharing.”

And once the alternate calculation is triggered, child support will vary according to the exact amount of overnight parenting time each parent is responsible for. At The Divorce Center, we believe the new statute will lessen fighting over money and direct the attention of parents to where it belongs: on their children.

Collateral Source

Ingenix v. Ham
Case No. 2D09-2211 (Fla. 2d DCA May 5, 2010)

Section 768.76(4), Fla. Stat., limits a collateral source provider’s right of reimbursement from a claimant’s recovery from a tortfeasor. It provides that the collateral source provider’s recovery: shall be limited to the actual amount of collateral sources recovered by the claimant from a tortfeasor, minus its pro rata share of costs and attorney’s fees incurred by the claimant in recovering such collateral sources from the tortfeasor. In determining the provider’s pro rata share of those costs and attorney’s fees, the provider shall have deducted from its recovery a percentage amount equal to the percentage of the judgment or settlement or settlement which is for costs and attorney’s fees.

The Second DCA holds that this provision controls over any provision to the contrary in a health insurance policy.

The health insurer was not entitled to reimbursement of the full amount of medical bills it had paid, even though the policy stated that it was. The insurer’s reimbursement had to be reduced by its pro rata share of costs and attorney’s fees.

Compulsory Medical Examination

Prince v. Mallari
2010 WL 1626522 (Fla. 5th DCA April 23, 2010)

Gaskins v. Canty
29 So.3d 432 (Fla. 2d DCA 2010)

In two recent decisions, the Fifth and Second Districts have clarified some of the parameters for compulsory medical examinations. While these examinations commonly arise under Florida Rule of Civil Procedure 1.360, they also occur in other situations, for example, at the behest of an insurance company in a PIP case, or in a worker’s comp case pursuant to 440.25(7), Fla. Stat. The Supreme Court has applied the same analysis to all of these contexts. See U.S. Security Ins. Co. v. Cimino, 754 So.2d 697 (Fla. 2000) (holding that the person examined has the right to have their own attorney and a video camera or court reporter present). The Court has also recognized that the examining doctor is not “independent” and that the term “compulsory examination” may be more realistic. See Allstate Ins. Co. v. Boecher, 733 So.2d 993, 995 n.4 (Fla. 1999) (noting that Rule 1.360 “specifically provides that the witness ‘shall not be identified as being appointed by the court.’”)

In Gaskins, following the Court’s “liberal view” in Cimino, the court stated that the party being examined is generally entitled to have their attorney, videographer or court reporter present unless the other party establishes a case-specific reason why such attendance would disrupt it, and that no other examiner in the area woud conduct an examination with a third party present. The Gaskins court, like the Cimino court, quashed an order prohibiting the plaintiff from having their attorney or videographer at the examination.

In Prince, the court held that the defendant could not have its own videographer at the CME. It pointed out that the examination is “‘adversarial’and the plaintiff is entitled to protection.” The plaintiff is generally unsophisticated and is “placed in the awkward position of being physically examined by someone not of his or her choosing, who has no interest in the plaintiff’s well-being and not for medical treatment.”

The examining physician is an expert witness for the opposing party. The plaintiff must be protected from improper questioning about liability issues by the defendant’s doctor, and the plaintiff’s privacy must be protected. “The defendant has no such right and needs no such protection.”
The defendant’s attorney is not allowed to attend the examination, see Chavez v. J&L Drywall, 858 So.2d 1266 Fla. 1st DCA 2003), and, the court held in Prince, is not permitted to attend by proxy through a videographer. “If the examination is recorded by her own attorney, she has control of it. To allow a stranger into the examining room to record the examination on behalf of one’s opponent, to be viewed and used as the opponent sees fit, is completely outside the operation of the rule.”

Finally, the court in Prince held that the video is entitled to work product protection unless the plaintiff decides to use it at trial.