Rubin on Probate Litigation

Alexander v. Harris , --- So.3d --- (Fla. 2nd DCA 2019) In this 2nd DCA case, the Court once again considered the ability to garnish distributions from a trust for the enforcement of a child support order. It held that the distributions made to or for the benefit of the father from a discretionary special needs trust could be garnished for child support payments owed to a minor child. The trust in question was a special needs trust funded from the settlement of a product liability action. The father has no control over the trust, cannot compel the trustee to make distributions, and does not personally receive any disbursements from the trust because they are made directly to third parties. The mother argued that pursuant to F.S. 736.0503, the discretionary distributions are not protected from continuing garnishment for support payments.  As you may recall, in 1985, the Florida Supreme Court held in Bacardi v. White that a continuing writ of garnishment may attach to d...

Levine v. Stimmel , --- So.3d --- (Fla. 5th DCA 2019) Florida Statutes F.S. 736.1004 provides that in actions for breach of fiduciary duty or challenging a trustee's exercise (or nonexercise) of their powers, and in trust modification proceedings, the court may award fees as in chancery actions. Here, the Court considered whether F.S. 736.1004 allowed a party to recover fees after unsuccessfully litigating entitlement to fees under F.S. 57.105.  More specifically, in this instance a fiduciary sought fees under F.S. 736.1004 after successfully defending claims revolving around alleged breaches of fiduciary duty. Part of the fees she sought were those incurred pursuing an unsuccessful F.S. 57.105 motion. The Court held that because F.S. 736.1004 does not expressly authorize recovery of attorney's fees for time spent litigating an alternative ground for fees, the fees incurred litigating the entitlement to fees were not recoverable.

Romanoff v. Lazarus , 267 So.3d 33 (Fla. 4th DCA 2019) Failure to raise a defense of lack of personal jurisdiction at the right time can constitute a waiver of the defense altogether. The timing of the defense has to be exactly right or the defense will often be waived. Here, the defendant did not raise the defense in her first motion to dismiss, but did raise it in a second motion to dismiss which was filed before the court heard her first motion to dismiss. Lack of personal jurisdiction is a defense that must be raised at the first opportunity and before the defendant takes any steps in the proceeding which would constitute submission to the court's jurisdiction. However, a waiver will not occur if the initial motion is amended to include the defense before the motion is heard. The Court held that while an answer which fails to raise the defense may constitute a waiver of the defense, a motion to dismiss that fails to raise the defense and is amended before it is heard w...