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CHAIR'S MESSAGE

As the Section celebrates our 50th anniversary, we are focusing this year on investing in the next generation. What better way to fulfill that theme than with the bi-annual Trial Advocacy Seminar in Orlando. About 125 family law attorneys, magistrates, judges, law students, and litigation support professionals gathered for four days with the shared intent of promoting excellence in trial advocacy in family law cases. We collaborated, encouraged, and inspired each other, and celebrated our growth together. Thank you to the 20 workshop leaders, 20 lay witnesses, 15 speakers, 15 forensic CPAs, 4 psychologists, 4 GALs who selflessly volunteered their time to provide the participants with an enriching and lively educational experience. Thank you to the event co-chairs Chelsea Miller, Amanda Tackenberg, and Julia Wyda who invested hundreds if not thousands of hours over the past 2 years to make this event a reality. And last, but certainly not least, a gigantic thank you to the event sponsors Brinkley Morgan, LLP, Coral Gables Trust, Florida Law Weekly, Manoff Mediations, Our Family Wizard, O’Shell Daun CPAs, Psychological Affiliates, Shechter Everett, LLP, and Smolin.  We could not have held the event without your support. 


As much as we are looking forward and investing in the next generation, we also look back and thank those who have invested in us. Have you been enjoying the Section’s Trustee videos on our social media? We are especially grateful for the Section’s past leadership who has invested in us to make our Section the robust and thriving organization it is today. Thank you to The Buzz Agency for going above and beyond in assembling and editing those videos. The full Section photo and video collage will be premiered at the Section’s 50th Celebration Gala.


Speaking of the Gala, the Section’s fall meetings and 50th Celebration Gala will be held on August 25-26, 2023, at the Ritz-Carlton, in Naples. The committee meetings will take place all day on Friday and the Executive Council meeting is scheduled for all day Saturday. There is no registration or cost to attend the meetings. Our meetings will end with a black-tie-optional ticketed “Roaring 20s” themed gala in the Ritz-Carlton Ballroom with live music, dancing, delicious food, and photo booths. There will be a special pre-gala meet-up for Trustees. Tickets for the gala as well as sponsorship opportunities are currently on-sale on the Section’s website. This is a memory-making not-to-be-missed event! A special thank you and shout out to Michelle Klinger Smith who has taken the lead on the gala planning and Doug Greenbaum who has been specially advising.


To round out our first group of events, the Section is traveling to Providence, Rhode Island from September 28-October 1, 2023! During our Out-of-State Retreat, we will be touring Newport, Rhode Island known for its mansions and shopping, leaf-peeping while at a local farm, and enjoying the music and fun of the famous Waterfire event. Hotel and event registration are available on the Section’s website. Thank you to Sarah Sullivan and Anya Cintron Stern for organizing what is sure to be a memorable event.


Are you reading this and curious how to get more involved? E-mail me at chair@familylawfla.org – I’d love to talk to you.  


I look forward to seeing you in August! 


Sarah E. Kay, B.C.S.

Chair, 2023-2024

FREE INFORMATIONAL CLE:

MECHANICS OF MARITAL & FAMILY LAW BOARD CERTIFICATION

Tues., August 8, 12PM - 2PM EST

This FREE course is intended for family law attorneys seeking information on how to successfully apply for and pass the Marital and Family Law Board Certification Exam to become Board Certified in Marital and Family Law.


Please note: This course is for informational purposes only, and will not be recorded. Accordingly, there will not be any CLE credit.


SCHEDULE

12:00 p.m. – 12:10 p.m.: Introductions

12:10 p.m. – 12:20 p.m.: Why Become Board Certified

12:20 p.m. – 12:30 p.m.: Application Process

12:30 p.m. – 1:30 p.m.: The Exam (study tips, format, administration, exam tips)

1:30 p.m. – 1:40 p.m.: Grading

1:40 p.m. – 1:50 p.m: Appeal Process

1:50 p.m. – 2:00 pm.: Final Thoughts

REGISTER HERE

CLE: FAMILY & CONTRACT LAW, A MATCH MADE IN HEAVEN

Thurs., August 17, 12PM - 1PM EST

Catherine Rodriguez, Evan Abramowitz, and Jacquie Valdespino will speak on contract law and its application to prenuptial/postnuptial agreements and marital settlement agreements. The presentation will be moderated by Brittany Bonner. 1 CLE Credit.


SCHEDULE

12:00 PM – 12:05 PM

Opening Remarks and Introductions

Britany Bonner, Miami


12:05 PM – 12:45 PM

Family and Contract Law: A Match Made in Heaven

Catherine Rodriguez, Miami

Evan Abramowitz, Miami

Jacquie Valdespino, Miam


12:45 PM – 12:55 PM

Questions and Answers – Brittany Bonner will moderate

Catherine Rodriguez

Evan Abramowitz

Jacquie Valdespino


12:55 PM – 1:00 PM

Closing Remarks Brittany Bonner


REGISTER HERE

FALL MEETINGS & 50th ANNIVERSARY GALA

August 24-26, The Ritz Carlton, Naples

Our 50th Anniversary Gala celebration is just around the corner! Join us at the newly renovated (and breathtaking) The Ritz Carlton Naples for a 'Roaring 20s' evening you won't want to miss on Saturday, Aug. 26, at the culmination of our Fall Committee Meetings in Naples (Aug. 24-26.)


The event is black-tie optional, and will include a reception, dinner, live music, and an array of fun Section shenanigans!


Gala tickets, hotel accommodations, the Fall Meeting schedule and sponsorship information can all be found by clicking the button below.

LEARN MORE HERE

OUT-OF-STATE RETREAT

September 28 - October 1, 2023

Providence, Rhode Island

Ready for a change of scenery? Same!


Join us for our Annual Out-of-State Retreat in historic Providence Rhode Island, from Thursday, Sept. 28 to Sunday, Oct. 1, 2023. We'll stay at the stunning The Graduate Hotel and our schedule is full to the gunwales with New England fall activities for the whole family to enjoy, including exciting excursions to Newport and Simmons Farm. Plus, the famous WaterFire will be on full display during our stay


The retreat is $325 for section members, $350 for guests, $175 for children 5-18, and free for children under 5.


Learn more and register by clicking the button below!

LEARN MORE HERE
CASE LAW UPDATE

By: Cash A. Eaton, Esq.


Brutus v. Giles, 2023 WL 3555051 (Fla. 5th DCA 2023).

 

The Brutus opinion out of the Fifth District is a good example of a trial court having an off day. The trial court’s ruling was overturned for a number of different reasons in what I am sure was a difficult case to parse through. Nevertheless, it proves a good opportunity for us, as practitioners, to learn how we can help members of our judiciary.

 

After trial, the trial court was left to resolve multiple different issues, the establishment of a parenting plan, all equitable distribution issues, and the Former Wife’s claim for alimony. The final judgment dissolved the marriage, ordered shared parental responsibility with equal timesharing, and awarded Former Wife durational alimony of $100 per month for sixty months. Further, it ordered an unequal distribution, but it provided no explanation as to why it was ordering an unequal distribution.

 

Equitable Distribution

The trial court awarded the Former Husband the marital home and ordered that he make an equalization payment to the Former Wife. However, the trial court provided no factual explanation as to how it determined the amount owed to the Former Wife. Further, the final judgment was not clear as to how it addressed post-filing expenses for mortgage, tax, and maintenance. Accordingly, this issue was remanded to the trial court.

 

Student Loan Debt

The Former Husband asserted that the trial court erred in ruling that he was required to take on his entire student debt, despite the fact that it had been incurred during the marriage. The trial court provided no clear specific factual findings as to why this seemingly marital debt was to be only the Former Husband’s responsibility. The Appellate Court speculated that the trial court was treating the student loan debt as non-marital because the Former Husband considered the student loan debt post-separation. However, this is not a sufficient basis to find that this marital debt is non-marital. Accordingly, this issue was remanded to the trial court. It is important to remember that, generally, student loan debt incurred during the parties’ marriage is marital debt.

 

Alimony

The trial court’s alimony award was also overturned. In its oral pronouncement, the trial court denied the Former Wife’s claim for alimony. Then, in its final judgment, the trial court awarded durational alimony of $100 per month. Florida law is clear that “Reversal is required when a trial court's oral pronouncements conflict with its written judgment.” Therefore, this is reversible error.


Parenting Plan

The trial court established the parties’ Parenting Plan. The Appellate Court reversed the Parenting Plan and held that it failed to meet the requirements of § 61.13(2)(b), Fla. Stat., which states the minimum requirements of a Parenting Plan. One big issue the Appellate Court took with the Parenting Plan was its timesharing schedule. The opinion states that the trial court wrote, “[t]he parties shall alternate one week on/one week off. The exchange shall be on Mondays with the party beginning their timesharing pickup from school or bus stop,” and “[r]egular timesharing shall remain during holiday periods, unless the parties agree otherwise.” The Appellate Court held that this was not a detailed enough schedule to meet the requirements of § 61.13(2)(b), Fla. Stat. Therefore, the Parenting Plan was overturned.

 

A lot of different basis for the Appellate Court to overturn the trial court. We as practitioners can learn from these mistakes. However, it is more important for us, as practitioners, to remember that we need to support our judiciary. We need to give them the case law, sufficient proposed parenting plans, etc. to ensure that they can make appropriate rulings under the law.

COMMITTEE SPOTLIGHT:

Appellate

The Appellate Committee, chaired by Shannon McLin, B.C.S., fulfills two primary roles for the Family Law Section. First, the Committee educates The Bar, the judiciary, and litigants about appellate issues affecting family law cases through CLEs, articles, and social media platforms. Second, it prepares amicus briefs on behalf of the Section as family law issues with statewide impact reach the appellate courts.

 

At the request of Bar leadership, the Appellate Committee has taken on a new role. With the passing of the new alimony and timesharing bills, the Committee is eager to receive and potentially provide feedback on interesting arguments made or rulings issued as trial courts enter appealable orders affected by the new legislation. Those with issues in the pipeline are encouraged to submit a written request to the Appellate Committee at appeals@familylawfla.org.

TECH TIPS:

Using Artificial Intelligence for Legal Research and Writing -

NOT Ready for Prime Time!

By: Jack Moring, Esq.


Do the names Steven Schwartz and Peter LoDuca ring a bell? How about the case of Mata v. Avianca Airlines (US District Court, Southern District of New York (SDNY); Case No. 22-cv-1461 (PKC))? They should.


Roberto Mata was suing[1] Avianca Airlines for personal injuries he allegedly suffered when he was struck by a serving cart during an Avianca flight. Attorneys Schwartz and LoDuca represented Mr. Mata. When the airline moved to dismiss Mata’s complaint, Attorney Schwartz prepared a response (entitled Plaintiff’s Affirmation in Opposition) to the motion to dismiss. Attorney LoDuca signed the response (Attorney Schwartz was not admitted to practice before the SDNY) and filed it. The response “cited and quoted from purported judicial decisions that were said to be published in the Federal Reporter, the Federal Supplement and Westlaw.” Roberto Mata v. Avianca, Inc., Opinion and Order on Sanctions, Case No. 1:22-cv-01461-PKC, Document 54, filed 06/22/2023, Page 4 (internal citations omitted).


Avianca thereafter filed a brief, indicating that it had “been unable to locate most of the case law cited in Plaintiff’s Affirmation in Opposition, and the few cases which the undersigned has been able to locate do not stand for the propositions for which they are cited.” Id., at Page 5 (internal citations omitted). Amazingly, after receipt of the brief, Attorneys Schwartz and LoDuca did nothing.


The Court (the Honorable P. Kevin Castel) then issued orders asking the attorneys to file copies of nine cases cited in their response. Attorney LoDuca filed an affidavit purporting to contain “copies or excerpts of all but one of the decisions required by the Orders of April 11 and 12. . . I was unable to locate the case of Zicherman v. Korean Air Lines Co., Ltd., 516 F. 2d 1237 (11th Cir. 2008) which was cited by the Court in Varghese.” Id., at Page 8 (internal citations omitted). He stated one of the other decisions was "unpublished." Id. Again, it was Attorney Schwartz who drafted this Affidavit. Attorney LoDuca signed it. The Court then issued an order to show cause, where the whole sordid affair finally came out. 


Attorney Schwartz testified that his firm generally practices in New York state courts, and it uses FastCase, which has only limited access to federal cases. “And it had occurred to me that I heard about this new site which I assumed – I falsely assumed was like a super search engine called ChatGPT, and that’s what I used.” Id., at pages 14, 15 (internal citations omitted). Judge Castel’s Opinion and Order on Sanctions, which can be found here, sets forth the queries Attorney Schwartz used in ChatGPT to get the results he included in the Affirmation in Opposition. “When directed to ‘provide case law’, ‘show me specific holdings’, ‘show me more cases’ and ‘give me some cases’, the chatbot complied by making them up.” Id., at 17 (internal citations omitted). Attorney Schwartz “questioned ChatGPT about the reliability of its work (e.g., ‘is Varghese a real case’ and ‘Are the other cases you provided fake’). ChatGPT responded that it had supplied ‘real authorities that could be found through Westlaw, LexisNexis and the Federal Report.” Id., at 19 (internal citations omitted).


A sanctions hearing was held on June 8, and the order therefrom issued on June 22. Finding the attorneys acted in bad faith (not so much for the error in using ChatGPT in the first place but for not owning up to it sooner than they did), the attorneys and their firm were served “[a] penalty of $5,000.00 . . . jointly and severally. . ..” Id., at 34.


Lest you think that all the attendant publicity has resulted in the brains behind ChatGPT tweaking its innards to correct these vast shortcomings, think again. A query to ChatGPT on June 23, 2023, requesting a memorandum of law, with accurate and correct citations to Florida case law, in support of an award of permanent periodic alimony following a short-term marriage, yielded a “citation” to Smith v. Smith, 879 So. 2d 853 (Fla. 2004). No such case at that cite exists. The other “citation” was to Johnson v. Johnson, 976 So. 2d 1234 (Fla. 2d DCA 2008). There is a family law case at that citation. It’s Erp v. Erp. It is from the Second District. It has nothing to do with alimony.


A query to Google’s AI bot, Bard, yielded similar results. It cited to but one factor in §61.08; namely (2)(c). It cited to Mallard v. Mallard, 632 So. 2d 435 (Fla. 1994). I remember Mallard. It deals with alimony in the sense that there is no savings component to be considered when determining the amount thereof. I also remember it came out in 2000, not in 1994. I don’t have the citation memorized, but I looked it up and it isn’t found at 632 So. 2d 435. It’s found at 771 So. 2d 1138. No Florida decision is found at 632 So. 2d 435.


Bard did return one correct citation. It was to Lambert v. Lambert, 955 So. 2d 35 (Fla. 2d DCA 2007). It was correct in that there is a case called Lambert v. Lambert, and it is found at 955 So. 2d 35. However, the case has nothing to do with permanent alimony following a short-term marriage. The parties in Lambert were married 27 years; hardly a short-term marriage (unless time really flew by for this couple, in which case one would have to ask why they ever divorced).


So, if you’ve considered doing your legal research with AI tools such as ChatGPT or Bard or the like, here are a few words of advice: DON’T DO IT!! The day may come when artificial intelligence appliances are developed enough to “assist” in legal research but judging from the cautionary tale presented by the Scwhartz/LoDuca debacle and from first-hand usage of existing tools, that day may still be some time away.


[1] On June 22, 2023, the case was dismissed as time barred. See Opinion and Order here.

WRITERS WANTED!

Want to submit an article for our monthly FAMSEG e-news, or our quarterly magazine, The Commentator? We can always use Tech Tips, Case Law Updates, and other relevant family law-related news for our 4,000+ members. Just email publications@familylawfla.org for more information. Thank you for your interest in contributing to our member publications!

SPONSORS WANTED!

Did you know that our Section Sponsorship has grown over the years? We have received 8 times the number of sponsorships that we had 7 years ago! Thank you to all of our past and current sponsors for supporting the mission of the Family Law Section! To learn more about getting involved, click HERE.

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