CHAIR'S MESSAGE
Welcome to our November edition of FAMSEG. As we move towards the holiday season, I know many of us are still recuperating from the damage of Hurricane Ian. Many of us also have undertaken our own efforts to assist those in need at this time.
 
I am thrilled to report that the Family Law Section has approved four separate donations, for $2,500 each, to the following legal aid offices in areas most impacted by the storm:

-      Lee County Legal Aid Society;
-      Legal Aid Society of Collier County;
-      Legal Aid of Manasota, Inc.; and
-      Legal Aid Society of the Orange County Bar Association.
 
A special “thank you” goes to Section Treasurer Chris Rumbold, who spearheaded our efforts to identify those organizations who will benefit the most from these funds.
 
As I reported last month, the Florida Bar has a “Hurricane Information” page on its website, which can be found HERE.
 
I am also happy to report that our recent In-State Retreat at the Ritz Carlton Resort in Sarasota was a huge success. A huge “thank you” goes out to our Retreat Co-chairs Belinda Lazzara and Magistrate Beth Luna. Those who attended were treated to a very informative presentation by former Florida Bar President John M. Stewart, Esq. who spoke on the topic of “Cyber Security and Data Privacy in the Law Firm.” 
 
I encourage all of our members to join us in Orlando for our next live committee meetings that are scheduled for Thursday, January 26, 2023, at the Gaylord Palms Resort. Also, our Executive Council meeting is scheduled for two days later, on Saturday, January 28, 2023. All members are welcome to attend this meeting, which will immediately follow the conclusion of our annual Family Law Review Course. We hope to see you at the Gaylord Palms in January!


Philip S. Wartenberg
Chair, 2022-2023
MID-YEAR MEETINGS &
BOARD CERTIFICATION REVIEW COURSE
January 25-28, 2023
Registration and rooms are filling up very quickly, so make your reservations TODAY for the 2023 Marital & Family Law Review Course, January 25-28, 2023.

The Section will also host its Mid-Year Meetings and an Executive Council meeting on Saturday, January 28. The schedule is below, and links for Course Registration and Room Reservations follow:

SCHEDULE
– Wed. January 25: “Cert Tips & Nibbles” for Registered Test Takers, 4:00 p.m. – 6:00 p.m.
– Thurs. January 26: Family Law Section Committee Meetings, 8:00 a.m. – 6:00 p.m.
– Friday, January 27: 2023 Marital & Family Law Review Course, 8:00 a.m. – 5:30 p.m.
– Saturday, January 28: Review Course (cont’d), 8:00 a.m. – 12:30 p.m.
– Saturday, January 28: Family Law Section Executive Council Mid-Year Meeting (mandatory for Executive Committee members), 1:00 p.m. – 5:00 p.m.

REGISTER FOR THE COURSE HERE.

ROOM RESERVATIONS HERE.
CLE: THREE MEN AND A FAMILY LAW CASE UPDATE 2022
Thursday, Nov. 17, 12:00PM - 1:30PM
This course is an online webinar informing viewers of recent appellate opinions addressing different topics within Florida Marital & Family Law. Our three speakers will cover a litany of topics from Florida’s newest family law cases. Further, the speakers will discuss different trends within Florida Marital & Family Law, along with certain trends within the different appellate courts within Florida. After a brief introductory session, the speakers will take turns discussing and teaching viewers about certain cases. The webinar will conclude with a question and answer session with the viewers. 1.5 CLE Credit.
SCHEDULE

12:00 PM - 12:10 PM
Welcome and Introductions
Cash A.. Eaton, Esq., West Palm Beach

12:10 PM - 1:20 PM
Case Law Review
Cash A. Eaton, Esq.
Ronald H. Kauffman, Esq.
Reuben Doupe', Esq.

1:20 PM - 1:30 PM
Question and Answer Session

FAMILY LAW: LIVE ON FACEBOOK
Tuesday, Nov. 15, 12:00PM
Join us for this FREE monthly presentation on our Section's Facebook page, featuring topical items of interest in the family law profession. This month's topic is: "Emergency Clauses in Parenting Plans: Hurricanes, Disasters, and More," presented by Anastasia J. Mahone, Esq., and Marck C. Joseph, Esq.

Tune in at noon on Tuesday, Nov. 15 right HERE!
THE SECTION SCENE: In-State Retreat 2022
Immediate Past Chair Heather Apicella and Michelle Klinger Smith
Belinda Lazzara and Beth Luna, Retreat Co-Chairs with Willie Mae Shepherd, Section Administrator
Phil Schipani and family
Section Chair Phil Wartenberg with former Section Chairs, Amy Hamlin, Maria Gonzales and Douglas Greenbaum
Natalya Evans and family
Chris Rumbold, Treasurer; Heather Apicella, Immediate Past Chair; Phil Wartenberg, Chair; Sarah Kay, Chair-Elect
Mark Skipper and family
Matt Lundy, Former Section Chair Amy Hamlin, and Ben Rossi
Beth Luna, John M. Stewart, The Florida Bar President-Elect Scott Westheimer, Belinda Lazzara
The Smolin Team (Retreat Ruby Sponsor) - Rory Gannon, Tonni Von Schaumburg and Alex Krasnomowitz and daughter
Karen Wartenberg, Sashane McDonald, Pauline Hensley, and Phil Wartenberg
Philip Lazzara, Kenneth Porras, Roray Gannon, Kristen Barber, Rueben Doupe, Jourdan Porter
CASE LAW UPDATE
By: Cash A. Eaton, Esq.

Gjokhila v. Seymour, 2022 WL 5237477 (Fla. 1st DCA 2022).
 
Gjokhila is a recent case out of the First District Court of Appeal. The Gjokhila opinion reinforces the concept of caveat emptor, “Let the buyer beware.” Further, the opinion shows us how important agreements are even outside of a divorce action.
 
I.             Factual Summary.
 
The Mother and Father of two minor children entered into a mediated settlement agreement. Based on that agreement, the parties agreed to the entry of a “Consent Final Judgment of Paternity and Related Relief.” The Consent Judgment established the Father's child support obligation. The incorporated support calculations included a future income adjustment for the Mother as her work hours were expected to increase to full-time employment. Accordingly, the Consent Judgment provided for the Father’s child support obligation to decrease in the future, commensurate with the Mother’s increase in income.
 
Nearly seven months after the Court entered the Consent Judgment, the Mother moved to set the parties’ agreement aside. In her motion, the Mother asserted that imputing income to her was erroneous. The Mother relied upon Fla. R. Civ. P. 1.540(B)(1), which allows a trial court to set aside a judgment based on mistake, inadvertence, or surprise. The trial court denied the Mother’s motion which lead to her appeal.
 
II.           Fla. R. Civ. P. 1.540(b)(1) & Fla. Fam. L. R. P. 12.540(b)(1).
 
Although this is pure speculation on my part, I think it’s safe to say that the Mother based her motion on Fla. R. Civ. P. 1.540(b)(1) because she missed the thirty (30) day deadline to file a notice of appeal. However, the Appellate Court reaffirmed that Fla. R. Civ. P. 1.540(b)(1) & Fla. Fam. L. R. P. 12.540(b)(1) cannot be used to correct a trial court’s alleged legal error (citing Curbelo v. Ullman, 571 So. 2d 443, 445 (Fla. 1990) (“Mistakes which result from oversight, neglect or accident are subject to correction under rule 1.540(b)(1). However, judicial error such as a mistaken view of the law is not one of the circumstances contemplated by the rule.”)).
 
However, the Appellate Court noted that the United States Supreme Court addressed whether Federal Rule of Civil Procedure 60(b)(1)3 encompasses a trial court's legal errors as “mistakes” that are correctable under that rule. See Kemp v. United States, 142 S. Ct. 1856 (2022). The Court held that the term “mistake” as used in Rule 60(b)(1) can include a judge's errors of law. Id. at 1858. Certainly, this is something to be mindful of, as it may impacts Fla. R. Civ. P. 1.540(b)(1) & Fla. Fam. L. R. P. 12.540(b)(1). Nevertheless, the Appellate Court determined that, even if the Mother’s motion could address these alleged errors, she was not entitled to such relief.
 
III.     Imputation of Income.
 
The Mother argued that by ratifying the parties’ agreement, the trial court failed to “protect” the Mother by allowing her to impute income to herself without proper findings. However, the Appellate Court expressly stated that voluntarily agreeing to a higher income figure is not “imputing income” under § 61.13, Fla. Stat. Specifically, it held:
 
“Imputation is a remedy that a court imposes when a party is voluntarily suppressing his or her earnings. It is used “[t]o counteract the tendency of parties to under-report or actually suppress their own incomes[.]” Steven S. Stephens, 23 Fla. Prac., Florida Family Law § 13:11 (2021). “True imputation occurs when the party is earning less than ... she could earn using best reasonable efforts.” Id. That is, “[a] higher level of income could exist, but due to a deliberate choice by the party, it does not.” Id.; see also Swain v. Swain, 932 So. 2d 1214, 1215 (Fla. 1st DCA 2006). Here, the court accepted an earnings level that the parties stipulated to in their mediated settlement agreement.”
 
Clearly, the parties’ stipulation to a higher income level is not the same as when a trial court “imputes” income to a party.
 
IV.     The Invited Error Doctrine.
 
Finally, the Appellate Court reaffirmed the “Invited Error Doctrine.” Under the invited error doctrine, a party cannot successfully complain of error for which they are responsible, or of rulings that they have invited the trial court to make. The Mother, by requesting the trial court ratify the parties’ mediated settlement agreement, invited the trial court to use an erroneous income amount and child support calculations. As the Mother invited the error, she cannot now “complain” about it on appeal. Caveat emptor!
HEY, CAN YOU FRONT ME SOME APPLE GIFT CARDS?
Tech Talk
By: Jack Moring, Esq.

In the early afternoon of August 22, I received an email from a colleague asking, “[A]re you free at the moment?” I replied that I was and said to call my cell phone and gave her that number. Her response, a few moments later, read “I am in a conference meeting right now as I would be working till late midnight but need you to get me some gift cards. Could you pick a few Apple gift cards for me, I tried purchasing online but no luck. When I’m done with the meeting I will reimburse you.” My chagrined reply was “Nice try, whoever is imitating XXX.”
 
Until receipt of that email, I thought that I was rather diligent when it came to filtering out spoof, phishing, and scam emails. As the de facto in-house IT department head, I regularly remind my staff not to open anything suspicious, especially attachments, and to always look at the email address of the sender, not just the sender’s name. In this instance, I failed to follow my own instructions. Had I done so, I would have clearly determined that the “colleague’s” email address was not her email address at all, but was, in fact, xxxxxxxxxx@gmail.com (not the actual address). A “Who Is” search turned up nothing, as did searches on Intelius and Spokeo. This was not unexpected as the email address was most likely a spoof address from a phishing scammer.
 
Thankfully, no harm was done, but it taught me to be more mindful in checking each sender’s email address before opening (something I thought I was already doing). Barracuda reports that “Spam accounts for 53% of the world’s email traffic, and about $20 billion per year in losses.” There are numerous products available to reduce the threats, but none of them are “set it and forget it”.
 
There are even more sophisticated threats out there involving bots, such as Qakbot, that hijack email chats to spread malware. A recent report from the HHS Cybersecurity Program on this insidious program can be found here.
 
Eternal vigilance remains the mantra. At the very least, you should have some type of anti-spam solution (and not just the junk e-mail filtering system that comes with Outlook for Microsoft 365). Microsoft has recently issued 10 tips on reducing spam. There are numerous third-party email filters that claim to reduce spam emails, some of which have “free” options (“free” meaning very limited and designed to upsell you one of the company’s paid offerings; note too that some may sell your data to other companies once you sign up for the “free” app). Do your research before downloading. Stay safe out there and take the extra few seconds to check the actual e-mail address of the sender before opening. If it seems “phishy,” it probably is.
NEW ETHICS RULE 4-1.14 (1)
CLIENT WITH DIMINISHED CAPACITY
By: Maria C. Gonzalez, Esq. and Robin S. Buckner, Esq.

The practice of law presents challenges for the lawyer to evaluate the facts presented by new clients in order to determine the proper legal causes of action and appropriate defenses. In the initial consultation, we engage with our potential new client and start to learn what the client wants to accomplish and how we can assist with that plan and ultimate result. There exists a presumption that the normal client-lawyer relationship includes effective communication, which includes the client’s ability to evaluate the lawyer’s advice on how best to achieve the objective of the representation.
 
The normal client-lawyer relationship may be compromised when the client either has partially or completely diminished capacity to make informed and reasoned decisions. Florida lawyers now have a new ethics Rule 4-1.14 which expressly assists lawyers representing clients with diminished capacity. The Florida Supreme Court evaluated ABA Model Rule 1.14 and decided to significantly rewrite Rule 4-1.14. [1] Two important provisions of the new Rule are unique to Florida and are not found in the ABA Rule.
 
First, new subsection (b) of the Florida Rule provides, in part that:
 
“A lawyer is not required to seek a determination of incapacity or the appointment of a guardian or take other protective action with respect to a client.”
 
Second, it also provides that:

 “A lawyer must make reasonable efforts to exhaust all other available remedies to protect the client before seeking removal of any of the client’s rights or the appointment of a guardian.”
 
The new Rule makes it clear that taking protective actions for clients with diminished capacity is not mandatory. The Rule authorizes family members or other trusted persons to participate in discussions with the lawyer when deemed necessary by the lawyer to take protective action measures. Doing so does not waive the attorney-client privilege. Further, the lawyer’s disclosure of the client’s diminished capacity to others does not breach the client’s right to confidentiality under the Rule because the information relating to representation of a client is protected under the new Rule.
 
Note that both the Florida and ABA rules state that diminished capacity may be as a result of “minority” or “mental impairment” or “some other reason." This is a very broad definition. It may include, for example, a teenage parent with limited ability (diminished capacity) to make financial or parenting decisions, which could give rise to another relative’s involvement in a paternity case. Or, when clients are too emotionally traumatized to make any decisions for their own or their children’s best interests, you may wish to seek assistance from family members or therapists. This is permitted under the new Rule. Clients with substance abuse issues may also fall under this Rule. 
 
Caveat – Just remember your duty is to the client and his/her best interests, not the best interests of the assisting relative.

Question – You think your client may be in imminent risk for harming him/herself or others (i.e., children). What action do you take? What is the lawyer’s responsibility to third parties? Remember that Florida is still a mandatory reporting state for abuse, abandonment or neglect.   
 
Familiarize yourself with this important new ethics Rule and understand when you can or should take protective action. The “Comment” section of the Rule is particularly helpful. Evaluate what reasonable efforts you must first take to exhaust all other available remedies to protect your client’s rights. Be on the lookout for an upcoming Commentator article which will discuss in much greater detail the impact of the new Rule on your practice and assist to better understand many ramifications of the Rule.

[1] The old Rule was titled “Client Under Disability” and was comprised of a mere two sentences. The new Rule addresses maintenance of the normal relationship, protective action and confidentiality.
COMMITTEE SPOTLIGHT
Equitable Distribution
FAMSEG recognizes the Section’s Equitable Distribution Committee co-chaired by Cash A. Eaton of West Palm Beach and Reuben Doupe of Naples. Vice Chairs are John Foster of Orlando and Lindsay Gunia of Miami, and Secretary is Jaime Girgenti of Tampa.
 
The Committee is dedicated to the improvement of Florida’s equitable distribution laws by identifying and addressing issues related to property division in dissolution actions. Also, the Committee has been instrumental in preparing, presenting, and proposing new statutory language concerning different equitable distribution issues. Recently, the committee has worked on proposed statutory language addressing interim partial equitable distribution awards and the valuation of goodwill in relation to business valuation issues.
 
The Committee also routinely works on issues involving other sections of the Florida Bar. Recently, members of the Committee have been working on proposed legislation created by both the Business Law Section and the Real Property, Probate and Trust Law Section. This type of inter-section work is common in the Equitable Distribution Committee because of how many Sections address property issues.
 
The Committee meets regularly in person and remotely to progress its goals. We welcome all readers to join us for our meetings in January at the Certification Review Course. Those interested in the Equitable Distribution Committee are encouraged to email equitable@familylawfla.org.

SPONSORS WANTED! If your business would like to reach nearly 4,000 Family Law professionals through our various communications platforms and in-person and virtual events, we invite you to consider Section sponsorship. To learn more about benefits and levels, email sponsorship@familylawfla.org or click HERE to learn more.
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 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!