Blog

2
Jun

Photographer Sells Others’ Instagram Photos As Art Without Permission For Thousands

WEST PALM BEACH (CBS12) – The photos you put online live online forever, but very rarely do they end up making someone else millions of dollars. At this year’s Frieze Art Fair in New York, Richard Prince sold dozens of enlarged Instagram photos for 90-thousand each. The controversial artist made a total of 2.3 million dollars. All without the permission of the instagram users. The images, all only slightly altered, are raising questions around what rights users really have when it comes to online posts. One of the instagram stars featured at the gallery, Doe Deere, posted a statement online, saying “No I did not give my permission and yes, the controversial artist Richard Prince put it up anyway.” Seth Kolton is an attorney with Weiss, Handler and Cornwell and says “It would almost necessitate one of these people filing a lawsuit to see exactly whether or not what this person did violates copyright law.” Some of the users are now fighting back but in a different way. Doe Deere and another Instagram user plan to resell the same photos Prince sold for 90 dollars each. All of the funds will go to charity. Kolton says it’s a reminder what you put online is fair game and to change your privacy settings if you don’t want people to have access to your photos. Richard Prince is known for similar controversies over the years and according to his online reaction, he is convinced he has done nothing wrong.

29
Apr

Developer defeats court challenges to Atlantic Crossing project on Atlantic Avenue in Delray Beach

Atlantic CrossingA developer represented by Weiss, Hander & Cornwell, P.A. defeated two court challenges to Atlantic Crossing, an upscale mixed use project at Atlantic Avenue and Federal Highway in Delray Beach. A homeowners’ association sued in Palm Beach Circuit Court for an injunction to stop the project. But the court dismissed the lawsuit “with prejudice,” agreeing with Weiss Handler that it did not have jurisdiction to hear the lawsuit while the same homeowners association was appealing the denial of its earlier challenge to the project. After that victory, the appellate court hearing the appeal of the denial of the earlier challenge to Atlantic Crossing also agreed with Weiss Handler that the appeal had no merit. The appellate court affirmed the earlier denial “per curium” without an opinion, meaning the appellate court believed the appeal so lacked merit it did not have to even explain its ruling.

View full documentation here (DOC file)
Documentation Stating the Writ is Denied (PDF)
Dismissal Document (PDF)

24
Apr

The End of Permanent Alimony Will Have to Await Another Legislative Session

The proposed sweeping changes to Florida’s Matrimonial Law have died in the Florida legislature. For a news accounting of the circumstances behind the collapse of the legislation, please see the attached article from the Tampa Bay Times. It is anticipated that this year’s changes, in the forms of House Bill 943 and Senate Bill 1248, will be reintroduced and better planned for the 2016 Legislative Session. In anticipation of the future legislation, this year’s bills provided:

  1. Elimination of the alimony categories of “bridge-the-gap”, rehabilitative, durational or permanent;
  2. 2. Elimination of the marriage categories of short, moderate or long terms based upon length of time;
  3. Guidelines to determine temporary alimonys;
  4. Present a formula and presumptive guidelines to determine full alimony, one effect of which is to eliminate future awards of permanent alimony;
  5. A formula and presumptive guidelines to determine full alimony, one effect of which is to eliminate future awards of permanent alimony;
  6. A reduction of “income” in calculating alimony;
  7. Restrictions on the combined awards of alimony and child support to fifty-five percent (55%) of the payor’s net income;
  8. Revisions to procedures to initiate participation in alimony depository;
  9. Repeal of the co-habitation requirement of finding a supporting relationship in a modification procedure;
  10. Identification of when evidence of financial resources of a successor spouse is admissible in a modification proceeding;
  11. Requirements for written findings justifying the determination of an alimony award or modification;
  12. Creation of a presumption that the litigating parties may have a lower standard of living after divorce;
  13. Provision for an alimony award modification or termination upon certain changes in actual income or the obligee’s reaching retirement; and
  14. Requirements for courts to advance certain domestic actions on their calendar upon party motion.

Alimony overhaul legislation dies in session acrimony

HOUSE BILL 943

There will be one category of alimony similar to the current “durational alimony” awardable in amount and duration based upon presumption guidelines. These guidelines are not applicable for temporary alimony.

An initial written finding is required regarding the amount of each party’s monthly gross income, including actual or potential income and income from non-martial or marital property distributed to each party, as well as the years of marriage as determined from the date of marriage through the date of filing the action for dissolution.

Gross income is substantially similar to gross income for purposes of determining child support with several additional sources of income recognized by current case law, such as monetary gifts and severance pay. It does not include child support, public assistance benefits, certain social security benefits, or earnings or gains on retirement accounts. If a party is voluntarily unemployed or underemployed, alimony is calculated based upon that party’s potential income unless the court specifically finds circumstances that make it inequitable to impute income. A party is underemployed if he or she is not working full-time in a position which is appropriate, based upon his or her education, experience, and the availability and the geographic area of his or her residence. After making such initial findings, the court is directed to calculate and make written findings regarding the presumptive alimony amount and duration range pursuant to a formula:

  1. The amount is 0.015 times the years of marriage times monthly gross income of the potential payor minus the monthly gross income of the party seeking alimony up to 0.020 times years of marriage times monthly gross income of the potential payor minus the monthly gross income of the party seeking the alimony; and
  2. The duration is 0.25 times years of marriage up to 0.75 times years of marriage.

A court must award alimony within the presumptive range based upon the length of the marriage and a list of the new marriage factors. There is a rebuttable presumption for marriages of two years or less duration that no alimony may be awarded regardless of the range except where the court makes specific findings that there is a clear and convincing need for alimony, the ability to pay alimony is present, and the failure to award alimony would be inequitable. In all other instances, alimony is presumptively awarded within the calculated presumptive range and the court retains discretion to determine the alimony award within the range but only after considering factors such as:

  1. Financial resources which include actual and potential income and the ability of each spouse to meet his or her reasonable needs independently;
  2. The standard of living of the parties during the marriage subject to consideration that neither party may be able to maintain the standard of living in light of the resulting two households post-divorce;
  3. The presence of marital property equitable distribution;
  4. The parties’ income, employment and employability;
  5. Reduction in employment due to needs of an unemancipated child of the marriage or the parties’ circumstances;
  6. Evidence that either party has forgone or postponed economic, educational or employment opportunity during the marriage;
  7. Whether either party has caused reasonable depletion or dissipation of marital assets;
  8. The amount of temporary alimony and the amount of time it was paid to the recipient spouse;
  9. The age, health and physical and mental condition of the parties;
  10. Significant economic or non-economic contributions to the marriage or to the economic, educational or occupational advancement of a party;
  11. The tax consequences of an alimony award; and
  12. Any other factor necessary to do equity and justice to the parties.

After consideration of the presumptive alimony amounts and range of duration and the listed factors, the court may award alimony. Any such award must clearly describe both the amount and duration of the award. The court is required to make a written finding that the payor has the financial ability to pay the award.

The ability of the court to establish alimony outside either or both of the presumptive alimony amount and alimony duration ranges occurs only if the court has considered all of the enumerated factors and makes specific written findings concerning the factors that justify the inapplicability of the alimony presumptions of duration.

I. DETERMINATION OF TEMPORARY ALIMONY

The bill requires that the Court first determine whether there is a need for temporary alimony and the ability to pay alimony, which restates and codifies the current standard for determining awards of other types of alimony. If both conditions are satisfied, the court must consider the factors used to determine an award of alimony within the presumptive alimony guidelines and make specific written findings of fact regarding the factors that justify an award of temporary alimony. The court may not use the presumptive alimony formula created in the bill to calculate temporary alimony.

II. MODIFICATION AND TERMINATION OF ALIMONY

The bill provides that the amount of an award of alimony under the presumptive guidelines may be modified or terminated consistent with current law. However, the court lacks authority to decrease or increase the duration of an award of alimony provided for by the agreement of the parties or by court order.

The bill authorizes the court to modify or even terminate an award of alimony based upon a substantial relationship that currently exists or has existed within one year prior to the filing of a modification petition, which allows a court to reduce an award of alimony if the petitioner proves that the obligee receives support in the recent past although current proof of a relationship may not presently exist. The court is permitted to consider whether the obligor’s failure to comply with the court order financial obligations to the obligee was a significant factor in the establishment of the relationship. The bill also eliminates the requirement that the obligee cohabitate with the person with whom he/she are in a supportive relationship, although cohabitation is a factor the court may still consider. The obligor does not have to prove cohabitation.

III. OLBIGOR RETIREMENT

The bill codifies the present case law and provides for modification or termination of alimony based on actual retirement. A substantial change in circumstances is deemed to exist if the obligor has reached the full retirement age for social security benefits and has retired or the obligor has reached the customary retirement age of his or her occupation and retired. The obligor may file an action within one year of his or her anticipated retirement and the court must determine the customary retirement date of the obligor’s profession. If an obligor voluntarily retires before meeting either of these conditions, the court must determine if the retirement is reasonable based upon current legal factors. If the voluntary retirement is reasonable, it constitutes a substantial change in circumstances. There is a rebuttable presumption that an obligor’s existing alimony obligations shall be modified or terminated upon finding a substantial change in circumstances. The bill provides factors which may overcome the presumption when applied to the current circumstances to the obligor and obligee including age, health, assets and liabilities, ability to maintain full or part-time employment and any other factor deemed relevant by the court. The court may temporarily reduce or suspend the obligor’s payment of alimony while a petition is pending.

IV. OBLIGOR’S REMARRIAGE

The bill states that the remarriage of an alimony obligor does not constitute a substantial change in circumstance or a basis for modification of alimony. Financial information of a successor spouse of the party paying or receiving alimony is inadmissible in a modification proceeding unless a party claims his or her income has increased since the marriage. The bill identifies the extent to which the information is discoverable and admissible.

V. IMPUTED INCOME

The bill provides that a party is entitled to pursue an immediate modification of alimony where the actual income earned by a party exceeds by at least ten percent (10%) the amount imputed to that party at the time the alimony award was determined or if the obligor becomes involuntarily underemployed or unemployed for at least six months following the entry of the last order of alimony.

VI. ATTORNEYS’ FEES AND COSTS

The bill provides that when awarding attorneys’ fees and costs in a modification action, a party is disqualified from the payment of his or her fees and costs when he or she unreasonably pursues or defends an action for modification and such unreasonably acting party will be required to pay the reasonable attorneys’ fees and costs of the prevailing party.

VII. NOMINAL ALIMONY

The bill reserves the right for the court to award nominal alimony in the amount of $1.00 per year if at the time of trial a party who traditionally provided a source of financial support to the family temporarily lacked the ability to pay support but was reasonably anticipated to have the ability to pay support in the future or the alimony recipient is presently able to work but has a medical condition that with a reasonable degree of certainty may prohibit or prevent his or her ability to work. The duration of the nominal alimony must be established in accordance with the presumptive guidelines.

VIII. ADVANCING THE TRIAL

The bill authorizes either party under Chapter 61 to move the court to advance the trial if more than two years have passed since the filing of the initial petition. The statute will direct that the court is required to give the case priority on the court’s calendar.

IX. PAYMENT OF ALIMONY AWARDS

The bill revises the procedures the parties must follow to initiate participation in the depository program. A party must now file a verified motion with the court alleging the default or arrearage. The court is then required to conduct an evidentiary hearing within fifteen (15) days of such filing to establish the default and the arrearages, if any.

X. CHILD SUPPORT

The bill states that in no event may a combined award of alimony and child support exceed fifty-five percent (55%) of the payor’s net income, calculated without any consideration of alimony or child support obligations.

XI. APPLICABILITY TO PENDING OR FUTURE PETITIONS OF MODIFICATIONS OF ALIMONY

The revisions made by the bill apply to all initial determinations of alimony and all alimony modification actions pending or brought on or after October 1, 2015. The changes to current law do not constitute a substantial change in circumstances sufficient to modify an alimony award and may not serve as the sole basis to seek modification prior to October 1, 2015.

SENATE BILL 1248

I. TEMPORARY ALIMONY

The bill requires the court to consider the justification for alimony (without the formula) after determining that the obligee’s need for temporary alimony and the obligor’s ability to pay.

II. ALIMONY AWARD IN FINAL JUDGMENT

Under the bill, the court must determine the amount of alimony in a staged process, from making initial findings, applying guidelines and consideration of other factors, including factors which may justify a deviation from the guidelines. The bill establishes presumptive alimony duration ranges from twenty-five percent (25%) to seventy-five percent (75%) of the marriage length and the bill eliminates the duration standards of present law for the purposes of bridge-the-gap, rehabilitative, durational or permanent alimony.

III. INITIAL FINDINGS

In establishing alimony, a court must first make initial written findings based on the amount of each party’s monthly gross income (including potential income and actual or potential income from non-marital property distributed to each party), and the years of marriage. The court must consider net income, rather than gross income in calculating alimony and support. The bill specifies that gross income is recurring income from specified sources such as salaries, overtime pay, wages, pension pay, retirement benefits, spousal support received from a previous marriage, trust income and distributions regularly received, payments received as an independent contractor for labor or services, workman’s compensation, unemployment benefits, social security benefits, and income from general partnerships, limited partnerships, closely held companies or limited liability companies. The bill makes an exception that if a party earns income from passive investment with a minority interest in the company, income is limited to actual cash distribution received. Gross income does not include child support payments, public assistance benefits, social security benefits received by a parent on behalf of a minor child, or earnings or gains on retirement accounts.

The courts must consider years of marriage based on whole years calculated from the date of marriage until the date of filing of the dissolution petition. The bill creates a rebuttable presumption against alimony for marriage of two years or less which can be rebutted by the party seeking alimony showing a clear and convincing need for alimony, the party from whom alimony is sought has the ability to pay, and that there would be an inequity resulting if the court does not award alimony.

IV. ALIMONY GUIDELINES

The bill establishes a formula to be used by the court after determining the need for alimony. The formula provides a presumptive range of alimony on the following basis:

  1. At the low end of the range of 0.015 times the years of marriage times the difference between the monthly gross income of the parties; and
  2. At the high end of the range of 0.020 times the years of marriage times the difference between the monthly gross income of the parties.

The formula bases the years of marriage at twenty for both the low and high end of the range. If the court establishes the duration of the alimony award at fifty percent (50%) or less of the length of the marriage, the court must use the actual years of marriage up to twenty-five (25) years to calculate the high end of a presumptive alimony amount range.

V. FACTORS FOR ALIMONY AWARD

Presumptive alimony is then based on findings of the court within the presumptive ranges by applying factors such as the financial resources of both parties, the standard of living of the parties during the marriage considering that there will be two households to maintain after dissolution and that neither party may be able to maintain the same standard of living, equitable distribution of marital property, the parties’ income, employment and employability, whether one party has historically earned higher or lower income than that at the time of trial, whether a party has foregone or postponed economic educational or employment opportunities, as well as the health, age and physical and mental health of the parties. The court may also consider the tax consequence of an alimony award as well as any other factor as necessary to provide equity and justice between the parties. However, under no circumstances may the court order alimony and child support in an amount, when combined, exceeding fifty-five percent (55%) of the obligor’s net income.

VI. DEVIATION FROM GUIDELINES

The court may determine an award of alimony that is outside the presumptive alimony amount or alimony duration ranges but only if the court makes specific written findings that the application of the ranges is inappropriate or inequitable after consideration of all the factors used as the basis of alimony. The bill also allows the court to reserve the issue of alimony by awarding the amount of $1.00 a year under the durational guidelines.

VII. TIMESHARING WITH CHILDREN

The bill creates a rebuttable presumption that approximately equal timesharing with the minor child by the both parents is in the best interests of the child. A party has the opportunity to overcome this presumption by establishing factors that affect the welfare and interests of the child and the circumstances of the family. The bill adds factors for consideration of the court such as the amount of timesharing requests of each party and the frequency that a parent would likely leave the child in the care of a non-relative on evenings or weekends when the other parent would be available and willing to provide care.

VIII. MODIFICATION OF ALIMONY

The bill provides that upon the filing of a petition by an obligor, the court may temporarily reduce or suspend the obligor’s alimony payment pending final hearing. The bill creates a rebuttable presumption that alimony must be modified or terminated if the court finds that the obligor’s retirement is a substantial change in circumstance. The presumption can be rebutted by factors such as the parties’ ages, the parties’ health, the parties’ assets and liabilities, the parties’ earned or imputed income, the parties’ ability to maintain part-time work, full-time employment, and any other factor deemed relevant by the court.

The bill establishes new substantial changes of circumstance conditions. Such factors include if the actual income of the party exceeds by at least ten percent (10%) of the amount the court imputed to the party when the court initially determined alimony, the other party may seek an immediate modification of alimony. The increase in an obligor’s income, by itself, does not constitute a basis for modification unless at the time the court established alimony, the court determined that the obligor was underemployed or unemployed but did not impute income at his or her maximum potential income. Another factor is if an obligor becomes involuntarily underemployed or unemployed for six months after the court enters a final order of alimony, when the obligor is entitled to pursue an immediate modification of alimony. Additionally, retirement is a substantial change of circumstance if the obligor has reached the age for eligibility to receive full retirement benefits under social security and has retired, or the obligor has reached the customary retirement age for his or her occupation and has retired from that occupation, of the obligor retires early and the court determines that the retirement is reasonable based upon the obligor’s age, health, motivation and impact on the obligee.

IX. REMARRIAGE OF OBLIGOR

The bill clarifies that remarriage of the obligor is not a substantial change in circumstance. The financial information of a subsequent spouse of a party paying or receiving alimony is to be treated as inadmissible and may not be considered as any part of any modification action unless a party is claiming that his or her income has decreased since the marriage. If a party so asserts, financial information is admissible for a limited purpose.

X. SUPPORTIVE RELATIONSHIP

The bill expands the requirement that the relationship currently exists, to one which existed within the previous year before the date of the filing of the petition for modification or determination of alimony. The bill also provides that a factor for the court to consider in determining modification based on a supportive relationship is whether the obligor’s failure to comply with all court-ordered financial obligations contributed to the need to have a supportive relationship. The bill requires the obligor to demonstrate by a preponderance of the evidence that a supportive relationship exists or has existed within the previous year before the filing date of the petition. The obligor is not required to prove the cohabitation of the obligee.

XI. ADVANCING TRIAL

The bill provides that the court must prioritize cases that have remained pending for more than two years from the original filing date if a party requests that the case be advanced to trial.

XII. APPLICATION OF THE BILL

The court may not modify the duration of an award of alimony initially established under the provisions of the new legislation. However, the formulas, factors and other provisions of the bill will apply to the resolution of a petition for modification. The bill applies to all initial alimony determinations and all alimony modification actions pending as of the October 1, 2015 effective date and all future initial determinations of alimony and alimony modification.

23
Apr

Delray OKs plans for upscale condos in five-story building

Delray Approves Plans for Upscale Condos in Five-Story Building

Delray’s newest downtown district will be getting upscale condos, shops, office space and a public plaza.
Commissioners signed off on plans late Tuesday to allow a five-story building with 48 condo units in Delray’s SOFA district. The new building, called The Metropolitan, will be built on the northeast corner of Southeast Third Avenue and Southeast First Street.

The name SOFA arises from the district’s “South of Atlantic” Avenue location.City officials are branding the districtas the city’s newest urban neighborhood.

The Metropolitan will offer a 24-hour concierge service, a fitnesscenter and rooftop deck. The units range in size from 920 square feet to 1,700 square feet; many have large outdoor decks.

To make The Metropolitan a reality, commissioners allowed the developer additional height, greater density and permission to build more one-bedroom units than the city’s rules allow.

The proposal calls for the building to reach 57 feet, higher than the 48-foot limit. The plans also call for more units per acre than the city allows. And half the units will be one-bedroom, or 20 percent more one-bedroom units than normally allowed by the city.

The Metropolitan will join several other developments aimed at attracting young professionals who want to live just off Atlantic and close to the beach.

It also will help provide a link between the city’s Osceola Park neighborhood and Atlantic Avenue.

“It’s going to be a very exciting place to live and work in the next few years,” said project architect Richard Jones.
Commissioner Al Jacquet, who lives in the SOFA district, said the development is what the area has been waiting for. “This looks amazing,” he said of the plans. “It’s a beautiful project.”

Some of Jacquet’s nearby neighbors in Osceola Park agreed the project is a great addition to the area.

Resident Kevin Homer called The Metropolitan a “gem.”

With the project comes a plan to build five single-family affordable homes elsewhere in the city to fulfill a workforce housing requirement. Building the five homes is a condition the commissioners attached to the project.

The city’s rules typically allow the developer to choose whether to build the affordable-housing units within the project, write the city a check for the total amount of units, so the city can pay to build the units in the future or construct affordable housing at a different location.

The project’s attorney Henry Handler said the developer will work with the city’s Community Land Trust to build homes that have at least three bedrooms and two bathrooms.

The project still will need several city approvals before it can break ground.

5
Mar

Crash Victim Sympathetic to DUI “Huffing” Suspect

5
Mar

Man Sues Maker, Distributor, Retailer of Aerosolized Duster After “Huffing” Arrest

17
Dec

In Republican-led Florida Senate, Democrats snag five chairmanships

State Senator Andy Gardiner

State Senator Andy Gardiner

Senate President Andy Gardiner unveiled his roster of committee assignments Wednesday, with the Republican leader spreading the wealth around to even include five Democratic chairmen.

In the House, which has a GOP  supermajority, Gardiner’s equal, Speaker Steve Crisafulli, R-Merritt Island, stuck to an all Republican lineup of committee bosses when he  announced his lineup last month.

But in the Senate, where Republicans hold a closer, 26-14 advantage over Democrats, Gardiner named Sen. Bill Montford, D-Tallahassee, head of the Agriculture Committee, Sen. Jeremy Ring, D-Margate, chair of Governmental Oversight and Accountability, and Sen. Eleanor Sobel, D-Hollywood, to lead the Children, Families and Elder Affairs Committee.

Sen. Joe Abruzzo, D-Wellington, also was named his chamber’s chair of the Joint Legislative Auditing Committee, while Sen. Chris Smith, D-Fort Lauderdale, was tapped for the same role on the Joint Committee on Public Counsel Oversight.

Gardiner, R-Orlando, also seemed intent on trying to maintain peace between two senators vying to be his successor, by naming Sen. Joe Negron, R-Stuart, head of a budget subcommittee on Criminal and Civil Justice, and Sen. Jack Latvala, R-Clearwater, leader of a budget sub on Transportation, Tourism and Economic Development.

Negron, whose district includes northern Palm Beach County, had been appropriations chairman the past two years under former Senate President Don Gaetz, R-Niceville, who continues in the Senate as chair of the budget panel on education.

The Senate appropriations committee chairmanship was announced Tuesday as going to Sen. Tom Lee, R-Brandon, another former Senate president.

Among Palm Beach County senators, Abruzzo also was named vice-chair of the Finance and Tax Committee, Sen. Maria Sachs, D-Delray Beach, was chosen vice-chair of the Higher Education panel, and Sen. Jeff Clemens, D-Lake Worth was picked as vice-chair on the tourism budget sub led by Latvala.

[ Palm Beach Post ]

 

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