Vol. 186 • January 2020€¦ · Wendy Merida Pro Bono Assistant. 239-775-4982 [email protected]. Thank you to all donors to the 2019 ‘Adopt a Family’ Holiday Gift Program!

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COURT REPORTING

Page 2 Adverse Witness, January 2020

MEDIATION & ARBITRATION

Adverse Witness, January 2020 Page 3

President’s Message“2020,” by Richard Montecalvo, Esq.

Legal Aid Notes“Thank You Donors to 2019 Adopt A Family,” by Jeffrey Ahren, Esq.

The Judges’ Corner“A Tribute to The Honorable Christine Greider,” by The Hon. Lauren Brodie

CalendarMake note of upcoming meetings, luncheons and other events

Bulletin BoardClassified Ads and Announcements

Guest Editorial“Inns of Court,” by Kelsey Hazzard, Esq.

Executive Director’s Corner“Our 2019 Membership Survey,” by Lisa Terwilliger

Guest Editorial“And Then Judge Greider Said ...,” by Beverly Brennan, Esq.

Guest Editorial“Invasion of Capital Assets in Determining Alimony,” by Michael Shemkus, Esq.

CenterspreadThe Collier County Bar Association Holiday Party

January 2020I S S U E H I G H L I G H T S

Publication Deadline: 10th day of month preceding publication

OfficersPresidentRichard Montecalvo

President ElectTravis Hayes

TreasurerAndrew Reiss

Secretary / AW EditorEdward Larsen

Executive DirectorLisa A. Terwilliger

Immediate Past PresidentKimberly Spiker

DirectorsChristopher DonovanRobin Doyle Rachel KerlekPatrick NealeJamie SchwinghamerRebecca VaccarielloCharles Whittington

Section Chairs:Section ChairsFamily Law – Michael ShemkusReal Estate – Sam SaadTrial Law – Donna MarshallTrusts & Estates – Emma ChristmanYoung Lawyers – J.P. Bratcher

Collier County Bar Association3315 E. Tamiami Trail, Suite 505Naples, Florida 34112(239) 252-8711(239) 775-5858 [email protected]: 8:30- 4:30 p.m. M-Thu8:30-4:00 FridaysThe Adverse Witness is pleased to feature articles submitted by Collier County Bar Association members, affiliates and the general public that may be of interest to Collier County Bar Association’s membership. The Collier County Bar Association does not verify the accuracy of the information contained in the articles published in the Adverse Witness, nor are the articles published in the Adverse Witness intended to express the views of the Collier County Bar Association. If you have questions or concerns about information contained in articles published in the Adverse Witness, please contact the author of the article directly.

Adverse WitnessEditorial Board

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Cover photo by Kelly Lyons Davis

If you have a picture (old or new) that you’d like to submit for consideration as cover art for the next issue of the Adverse Witness, please forward a JPG image to Lisa Terwilliger, [email protected] along with a brief description of the place depicted in your photo.


PRESIDENT’S MESSAGE By Richard Montecalvo, Esq.

2020So, is it twenty-twenty? Or two thousand and twenty? Or two thousand twenty? We all thought that after 2009, the “thousand” would go away and we would refer to the year as twenty_____. However, that did not really happen en-masse so I doubt it will magically occur now. You do not consider these issues in your busy life, but as I sit down to compose this message, all kinds of mundane things cross my mind. Such is the stress of attempting to reach 750 words.

As 2020 descends upon us all, my thoughts drift back to circa 1973. As a nine-year-old boy into science fiction and the future, I had already figured out how old I would be in the year 2000. It was overwhelming to think that I would ever be that old. Couple that with Roger Daltrey singing about never reaching old age (how brash was he in 1965?), and my young generation mind raced with ideas about what the 21st Century would look like.

Now, thanks to the internet, I can read about what some of the most esteemed scientists, writers and thinkers of the 20th Century thought about the future. Arthur C. Clarke (of 2001: A Space Odyssey fame) believed that we would live in flying houses. Houses. Imagine Naples’ annual snowbird migration of flying houses! Vacant lots during the summer months then, Voila! A 14,000 square foot palace landing gently on reverse thrusters. Combine the flying houses with the 1957 prediction by Popular Mechanics that a network of pneumatic tubes would replace our streets and highways and that our cars would be pneumatically powered. Think of that the next time you are waiting through three light cycles at the corner of Airport and Pine Ridge. Perhaps the most controversial and outlandish prediction among many? Nikola Tesla believed that coffee and tea consumption would be eradicated. Just who in the world does he think HE is?

With the exception of hand-held devices which harness more power and information than the computers which powered the Apollo missions, our world seems very much the same today as in 1973. We can rest easy that while the most outlandish predictions have yet to materialize, classic films like A Clockwork Orange, Logan’s Run, and Close Encounters of the Third Kind still provoke us to consider what our future might actually look like. Will it be apocalyptic and profane, as was warned by Leonard Cohen, or will the sun come out and melt the ice away, as was hoped by George Harrison? The future really is up to us, is it not?

A special responsibility rests on the shoulders of lawyers; a self-imposed obligation to ensure that the future of the legal practice thrives in the service of others. This duty is accepted by our membership without hesitation. I am half-way through the honor of serving as President of our Association and it has been a pleasure to meet and talk to you all. Your Board is a vibrant and active bunch, dedicated to the present and future of our Bar. Our sections remain energetic with informative speakers and provide relevant professional information for diverse practice areas. Our partnerships with Legal Aid, and Inns of Court, continue to thrive. The Foundation is making a difference in our community. My hope it that as I hand off the responsibilities of President to Travis Hayes in June that the present, and the future, of the CCBA, is stronger than ever. I have about six more months left to screw that up. Although Lisa will certainly not allow that!

I ask that you remain engaged in framing the future of the CCBA. Prospective members will be polishing their craft during the Mock Trial competition on January 24 from 4:00 to 6:00 p.m. and January 25 from 9:00 a.m. through the Championship round. Join us at Kensington on January 10 as we hear from Florida Bar President John Stewart about the present, and future, of The Florida Bar. And please do not forget to fill out the 2019 Member Survey so that the CCBA may best serve and tackle current and future issues that may arise, but, most importantly, to innovate and diversify so we can remain relevant and responsive to your needs.

Thank you for reading up to this point. We are proud to make available The Adverse Witness by US Mail and by electronic transmission. Unfortunately, we are currently unable to provide it by intercontinental ballistic missile. That possibility, ever so present and predicted in 1959, has not yet been perfected.

2020 is here. The future is present. Hold tight and enjoy the ride.

“I ask that you remain engaged in framing the future

of the CCBA.”

Art Aid BenefitFebruary 8-16, 2020

Online Auction

Barrister’s BashThursday, April 23, 2020

Hilton Naples


LEGAL AID NOTES

Thank you donors to 2019 “Adopt A Family”

By Jeffrey Ahren, Esq.

Jeffrey AhrenDirector of Development

[email protected]

Kim AdamsDevelopment Assistant

[email protected]

Wendy MeridaPro Bono Assistant

[email protected]

Thank you to all donors to the 2019 ‘Adopt a Family’ Holiday Gift Program!

Our 13th Annual ‘Adopt a Family Holiday Gift Program’ was highly successful again this year, thanks to the generosity of our donor ‘adopters’ who provided toys and other gifts to 50 families and 112 children in need served by Legal Aid!

This very special event would not be possible without the generous support of our donors and the volunteers and dedicated staff members at Legal Aid. A special thanks to the Collier County Bar Association and Collier County Bar Foundation for the very generous donation of $3,000 resulting in the ‘adoption’ of 30 children! Legal Aid is also grateful to the Naples Zoo for hosting the event again this year. Many thanks also to Bill Canavan, formerly of Legal Aid’s Children’s Unit, who used his connections to make sure Santa Claus was present to surprise the children. Thanks also to U Haul of Naples for donating a truck to transport the gifts to the party at the Zoo which was held on Friday, December 13, 2019, from 5:00 p.m. to 7:00 p.m.

Legal Aid thanks the following donors who ‘adopted’ families and their minor children this year: Collier County Bar Foundation; Callie and James Soldavini; Roseann Garrett; Katie and Joe Kohn; Chrystina Torrez; Saxe Doernberger & Vita, PC; Sharon Hanlon; Sonia Diaz & Family; Bob Menzies & Family; Hon. Tamara Nicola; Maggie McMorrow; Kim Spiker & Family; Gray Robinson; Bridgett Ashford; Suzanne Lanier; Jacqueline Boudreau; James Stewart; Cohen & Grigsby; Quarles & Brady; Kate Dunn; Judith Wise; Threlkeld Law, PA; Meghan & Stephen Ruffino; Jeff & Danielle Ahren; Damian & Arianne Taylor; US Legal Support; Louise McLaughlin; Danielle & Dan Jenkins; Carol & Margie O’Callaghan; Mike & Whitney Schadler; Ed Larsen; Michael Sneeringer; Carol Collins; Craciun & Gafolli Families; Marion Smith & Family; Mike & Claudia Dal Lago; Tara Mucha; Jeanette Lombardi; and Santa Delgado.

2nd Annual ‘Art Aid’ online Art Auction to benefit Legal Aid – Feb. 8 to 16, 2020For nine days in February, 2020, a group of prominent artists from Southwest Florida and beyond will host ART AID, our 2nd Annual online charity art auction featuring the artwork of local artists such as Paul Arsenault, Clyde Butcher and Phil Fisher. Proceeds raised by the charity auction will benefit Legal Aid Service of Collier County.

The auction will begin on Saturday, February 8, 2020 and conclude on Sunday, February 16, 2010. Pre-registration will begin in mid-January, and the online auction portal and preview of the art included in the auction may be accessed through the event website – www.artaid-naples.com .

Last year, nearly 30 artists donated artwork to the inaugural Art Aid auction, which raised nearly $28,000 in support of Legal Aid. The 2020 Art Aid event has expanded to 55 incred-ibly talented artists from all over Southwest Florida and this year also features artists from South Florida and the east coast. All of the participating artists created and donated a piece of art specifically for ART AID. The public may preview paintings, photography, and other fine art for sale in the local galleries of the artists and online in mid-January after pre-registering for the auction.

We are humbled and thrilled by the amazing support and generous donations these artists have provided to help the children and families in need served by Legal Aid. The roster of artists is incredible and includes the following icons, rising stars, and regional talent:

Cynthia Adams; Steve Adams; Cesar Aguilera; Paul Arsenault; Jan Ellen Atkielski; Michael-Beard; Paula Brody; Clyde Butcher; David Clough; Randy Coleman; Juan Diaz; Richard J.

continued on page 10


By The Honorable Lauren L. BrodieCircuit Court Judge, 20th Judicial Circuit

A tribute to The Honorable Christine GreiderMany of you may have known Christine Greider in her days as a student at East Naples Middle School or at Lely High, a legal secretary at various law firms here in town, or as a formidable family law attorney for 11 years before she joined the State Attorney’s Office.

I first met Christine around 21 years ago when I was working as a Senior Judge in the felony division and Christine was a Domestic Violence and elder Exploitation prosecutor who often appeared in front of me. I was instantly impressed with her knowledge, organization, thor-oughness, and preparedness.

A few years later our paths crossed again when my husband and I were invited to a small gath-ering of women professionals and their husbands. She and I were the only female attorneys who were married to medical doctors. Little did I know at that time what a common thread that would represent in our respective lives.

When I became a Felony Judge in 2002, I was delighted to find out that the Domestic Violence prosecutor assigned to my courtroom was none other than Christine Greider. She stood out among so many with her color-coded files, charts galore, and of course, her trial skills.

As a judge, I always enjoyed when Christine appeared in my court. Shortly thereafter in 2004, Christine was selected to be the Misdemeanor Supervisor where she was able to use her years of trial experience to train new lawyers about best practices.

In 2006, Christine decided to apply for a County Court vacancy. Needless to say, no one was surprised when Governor Bush appointed her. She was eminently qualified!

That is when I really got to know Christine more personally – as a colleague, as a suite-mate, and as a person. Christine and I shared many conversations learning about and from each other about a myriad of topics, both personally and professionally. It was during this time that Drug Free Collier was founded and Christine was an integral part of helping form the organi-zation and serving as one of its original board members. She also significantly expanded adult Drug court over which she presided for five years.

During this time, Christine decided she may like the opportunity to serve as a Circuit Court Judge and declared her intentions to run for then-retiring Judge Monaco’s seat. Again, and to no one’s surprise, she was elected – and without opposition.

Because there were no vacancies in Collier County at that time, Christine began her daily trek; first to Hendry County where she served as the only Circuit Court judge handling every type of case for two and a half years, then to a split Lee/Charlotte docket for nine months be-fore being transferred to Charlotte County where she served as Administrative Judge while presiding over a felony docket for over two years.

During these years, Christine worked tirelessly in every division, always displaying her keen intellect and her passion for doing the best she could while promoting the highest profes-sional and ethical ideals. She presided over high profile cases in every county, including death penalty cases.

In January 2013, Christine finally returned to Collier County as the Administrative Judge and assigned to a family court division. Again, she displayed all of her same qualities and using the same skills she did in her previous roles – listening to everyone, trying to reconcile personali-ties, philosophies, and strategies while never losing sight of the overall goal – a fair administra-tion of justice.

While in Family Court, Christine became involved in the statewide effort of implementing Unified Family Courts and earned the recognition of Justice Pariente and the Office of the

“Christine worked tirelessly in every

division, always displaying her keen

intellect and her passion for doing the

best she could while promoting the highest

professional and ethical ideals.”

THE JUDGES’ CORNER

See “Judge Greider Tribute,” page 12

JANUARY


MARK YOUR CALENDAR

8 CCBA Board Meeting CCBA Office 7:30 a.m.

CCB Foundation Meeting CCBA Office 8:30 a.m.

10 CCBA Membership Luncheon Kensington Country Club 12:00 p.m. Members - $25; Non-members- $35

14 Real Estate Section Luncheon Shula’s Steakhouse 12:00 p.m. Members - $25; Non-members - $35

15 Family Law Brown Bag Collier County Courthouse Training Room 12:00 p.m.

Register for any event through Iris Belen.

Phone: [email protected]

www.colliercountybar.org

FEBRUARY

Event PolicyIt is the policy of the Collier County Bar Association to request that all reservations for our events are placed at least two days prior to the event.

We are always willing to accommodate our members; however, event sites must order food two days prior to an event.

Also, it is the policy of the Collier County Bar Association to issue refunds ONLY if a member cancels a reservation two days prior to an event. If a member cancels the day before, or the day of an event, a refund will not be issued.

We appreciate your consideration of this policy.

17 TL/YL Technology Seminar Hyatt House 12:00 p.m. – 5:00 p.m. Followed by a happy hour TL/YL Members - $50; Non-members - $65

20 CCBA Office Closed for MLK Day

21 Young Lawyers Board Meeting Sushi Thai 12:00 p.m.

24-25 Mock Trial Competition Please consider volunteering to judge a round

(or two!) Visit the website or email Lisa for times and

details

31 Retirement Celebration for the Honorable Christine Greider

Collier County Courthouse Atrium 3:00 p.m. – 5:00 p.m.

4 February Trial Law Luncheon Bonefish Grill 12:00 p.m. - 1:00 p.m. TL Members - $25; TL Non-members - $35

5 CCBA Board Meeting CCBA Office 7:30 a.m. - 8:30 a.m.

5 CCB Foundation Board Meeting CCBA Office 8:30 a.m. - 9:30 a.m.

7 Estate Planning Symposium Naples Hilton 7:30 a.m. - 12:00 p.m. TE Members - $50; TE Non-members - $65

14 February CCBA Membership Luncheon Kensington Country Club 12:00 p.m. - 1:00 p.m. Members - $25; Non-members- $35

18 YL Board Meeting Location TBD 12:00 p.m. - 1:00 p.m.

19 February Family Law Luncheon Bonefish Grill 12:00 p.m. - 1:30 p.m. FL Members - $25; FL Non-members - $35

29 CCB Foundation Casino - Once Upon a Blue Moon

The Club at Pelican Bay 5:30 p. m. - 11:00 p.m. Tickets are $100 each


CLASSIFIEDLITIGATION ASSOCIATE - Roetzel & An-dress has an immediate opening for an ex-perienced litigator to join its Naples office. Our ideal candidate will have experience in commercial litigation and/or construction litigation. This position will also have the op-portunity to work in other areas of litigation to support the Firm’s needs. This is a great opportunity to join a vibrant and growing practice. Minimum requirements:• 4–6 years of general litigation experience• Ability to review and analyze legal issues

relating to workers’ compensation claims• Member of The Florida Bar in good stand-

ingQualified candidates should submit a cover letter, resume, references and compensa-tion requirement to Julie Koenig-Hill at [email protected] compensation and excellent benefits. Roetzel & Andress is an Equal Op-portunity Employer.Roetzel & Andress maintains a policy of non-discrimination and inclusion with respect to all employees and applicants for employ-ment. All decisions as to employment with the Firm are governed solely on the basis of merit, competence, and qualifications, and are not influenced or informed in any manner by the employee’s or applicant’s race, color, religion, sex, age, national origin, ancestry, disability, marital or parental status, sexual orientation, gender identity, military status, veteran status, or any other basis prohibited by statute.

REAL ESTATE ASSOCIATE - Roetzel & Andress has an immediate opening for an experienced real estate attorney to join its Naples office. Our ideal candidate will have experience in commercial real estate and loan documentation. This is a great oppor-tunity to join a vibrant and growing practice.Minimum requirements:

BULLETIN BOARD

Got news?Contact Lisa Terwilliger

by calling 252-8711 or drop an email

line to [email protected]

Inclusion Policy

If you are a CCBA member in good standing and you’ve

moved, been promoted, hired an associate, taken on a partner, or

received an award, we’d like to hear from you. Talks, speeches

(unless they are of national stature), CLE presentations and

political announcements are not accepted. In addition, we will not print notices of honors

determined by other publications (e.g., Super Lawyers, Best

Lawyers, etc.).

Notices must be submitted in writing and limited to 100 words;

they are printed at no cost to members and are subject to

editing. E-mail your notice to [email protected].

• 2–6 years of general litigation experience• Experience reviewing title and issuing title

insurance• Member of The Florida Bar in good stand-

ingQualified candidates should submit a cover letter, resume, references and compensa-tion requirement to Julie Koenig-Hill at [email protected] compensation and excellent benefits. Roetzel & Andress is an Equal Op-portunity Employer.Roetzel & Andress maintains a policy of non-discrimination and inclusion with respect to all employees and applicants for employ-ment. All decisions as to employment with the Firm are governed solely on the basis of merit, competence, and qualifications, and are not influenced or informed in any manner by the employee’s or applicant’s race, color, religion, sex, age, national origin, ancestry, disability, marital or parental status, sexual orientation, gender identity, military status, veteran status, or any other basis prohibited by statute.

POSITION AVAILABLE: Falk Law Firm has immediate opening for experienced part or full time community association associate. Ideal candidate has at least 3 years’ experi-ence representing community associations, country clubs and developers, including col-lections. Competitive compensation/ben-efits. Qualified candidates should submit cover letter and resume to Steven Falk, Esq. at [email protected].

FOR SALE: Konica Minolta BizHub Model 354e Copier/Fax/Scanner, $3,250.00 and owner will buy out balance of lease, or As-signment of Lease (Expires March 2021). Great condition and low copy count. Peri-odic maintenance performed and virtually no service calls. Contact Holly Harmon (239) 206-0700 for additional information.

Announcements on page 10


By Kelsey Hazzard, Esq.GUEST EDITORIAL

It’s hard to believe that we are more than halfway through the Inn of Court season! Many thanks to the January team for educating us about ethics and malpractice, Family Feud style. CLE credit information will be available soon.

We have received CLE credit for the November presentation. The course number is 1908993N.

I would also like to take this opportunity to once again thank our sponsors. Their support makes our programming possible.

Ave Maria School of Law

Jerry Berry & Michael Hopkins Criminal Defense

Robert J. Biswum & Associates

Blount Mediation Services

The Boatman Law Firm, PA

Cheffy Passidomo

Cummings & Lockwood LLC

Law Offices of Donald P. Day

Goede Adamczyk DeBoest Cross

Grant Fridkin Pearson

Hardt Trial Solutions PLLC

Hazzard Mediation & Arbitration

Lindsay & Allen

Silverio & Hall

Mark Slack, Esq.

Weldon & Rothman

Our next meeting will take place on Tuesday, February 11, 2020 at Kensington Country Club, from 5:30 p.m. to 7:00 p.m. Please RSVP at least a week in advance so we can pro-vide the kitchen with an accurate headcount.

Want to get more involved in the Inn? The Board of Directors is always looking for dedi-cated lawyers who support the Inn’s values. Email me at [email protected].

Inns of Court


ANNOUNCEMENTSLegal Aid Notes from page 5

Announcement correctionLast month we noted that Ashley Cooper was the president-elect of the CCBA. While we don’t doubt that Ashley will be president someday, the announcement should have stated that she is president-elect of the Young Lawyers Section.

Cummings & Lockwood is pleased to an-nounce that Joseph A. Stusek, a trusts and estates attorney in the Firm’s Private Clients Group based in the Naples office, has been selected to the Greater Naples Chamber of Commerce GAIN Class of 2020. Joe received his LL.M. in Taxation from the University of Florida, Levin College of Law; his J.D. from the University of North Carolina School of Law;

and his B.A. in Economics and Global Politics from Washington and Lee University. He is a member of the Tax Section and Real Property, Probate & Trust Law Section of the Florida Bar As-sociation. He is also a member of the Trusts & Estates Section of the Collier County Bar Association and board member of their Young Lawyers Section. He is a graduate of Class IV of the Florida Fellows Institute of the American College of Trust and Estate Counsel. Joe is a co-author of Thomas Reuters’s Ancil-lary Probate in Florida, a Practice Law Guide.

It is bittersweet to say goodbye both to the practice of law and to all the wonder-ful professionals I have met along my 22 year journey. From the moment I came to Collier County after practicing in Lee County for 20 years, I have had mostly wonderful experiences with caring attor-neys and staff who were both professional and courteous. The clerks and Judicial as-

sistants at the Courthouse could not have been more help-ful and patient. Our hard-working judiciary have always been a pleasure to practice before: and of course a shout out to all who make our local bar association a place of continuing education and camaraderie. I shall miss you all dearly. I will hold many fond memories. Take good care of yourselves and be kind to each other. This business is hard.

Fondly, Elizabeth Wolt

Diedrich; Jean Daniel Dornevil; Shawn Escott; Jeff Fessenden; Phil Fisher; Popo Flanigan; Linda Fleischman; Jim Freeman; Richard Gantz; Dennis Goodman; Natalie Guess; Emily James; Shirley Kelley; Brigitte Keller; Richard Kirk; Rosemarie Kirk; Mary LaGarde; Lisa Alfidi Lockemar; Holly Manneck; Amy Moglia Heuerman; Lisette Morales; Elaine Murphy; Ralph Papa; Mary Parkman; Jane Peccarelli; Anna Rac; Jim Rice; Richard W. Rosen; Tracy Magen Rosen; Marvin Rouse; Ann Sullivan; Tammra Sigler; Marcus Thomas; Rod Wiley; and Marcus Zotter.

12th Annual Barrister’s Bash – Major Award winners to be announced in January

Our 12th Annual Barrister’s Bash is coming up in April, and all members of the bench, bar and local community are cordially invited to join us!

We will be announcing our Major Award winners in January to be honored at the event in April. This includes Attorney of the Year, Law Firm of the Year, Outstanding Pro Bono Service Award, Leadership Award and Champion of Justice. We will also be honoring all of our Attorneys of the Month at the ‘Bash.’ Stay tuned for more announcements in the next issue of Ad-verse Witness.

Barrister’s Bash, Thursday, April 23, 2020Time: 6:00 p.m. to 9:00 p.m.Location: Hilton Naples (5111 Tamiami Trail North, Naples FL 34103)Ticket price: $125 per person (all proceeds benefit Legal Aid Service of Collier County)Format: The event includes dinner, cocktail hour, silent auction, live appeal and a community awards ceremony.Contact: Jeff Ahren, Director of Development (239) 298-8130 [email protected]: www.collierlegalaid.org Sponsorships: Title - $5,000 ; Visionary - $3,500; Ambassador - $2,500; Leadership - $1,500; Partner - $1,000; and Advocate - $500.


EXECUTIVE DIRECTOR’S CORNER

Our 2019 membership surveyFor those of you who have become familiar with my random thoughts in this column you will either be relieved or disappointed that this will not follow the typical meandering path of past issues. I actually have something concrete to discuss…the 2019 membership survey. We really do read the responses and endeavor to make positive changes based upon the information you provide.

The demographic information gives us guidelines for programming interests and venue loca-tions. Most of those who replied to the survey are experienced, with more than 16 years in practice. And you’re mostly in small firms located in North Naples. This tells me that we need to find some venues north of Pine Ridge Road for our events. This is different from the last survey with more of the attorneys located either downtown or in the mid-point areas. Look for events to roll out in your area. If you have suggestions or contacts at one of the venues, I’d be grateful for the information.

The next part of the survey discussed CCBA events. I’m pleased to report that 86% of re-spondents are either satisfied or very satisfied with our events; while 14% were neutral and under 1% were dissatisfied. Comments in this section included moving some of the events north, as mentioned above. Others discussed a lack of time to attend, or the lack of budget to do so. We are working on trying to discount some of our events; not an easy task in Naples, but I’m trying, I promise. We know that those of you who work in small firms or for the gov-ernment struggle to justify the time and expense of an event. I want that decision to be an easier one for you. As for the time to attend, I wish I could help. It seems that everyone has been super busy this year. Perhaps consider the luncheons an investment in yourself; a well-deserved break and opportunity to learn something new.

Most of the comments were so kind and lovely. It would be self-serving and not at all in keeping with my humble nature to tell you that á la Sally Fields, “You like me, you really like me!” (see the Academy Awards March 25, 1985…my parents told me about it as I was way too young to recall). The feeling is completely mutual! Seriously though, you seem to be pleased with us and that makes me beyond happy. My favorite comment was, “I think the CCBA is quite progressive and would compare favorably with any other voluntary bar association in the state.” I couldn’t agree more, we have an involved and conscientious board, a stellar staff, and wonderful members. By the way 93% of respondents agree, stating that they are either satisfied or very satisfied with our leadership.

We also asked you about your interest in travelling with us in 2020. It seems that this may not be the year for adventure. We had an amazing time in Cuba last May. I’m hopeful you’ll all consider a trip in 2021.

The next section deals with the Adverse Witness. Most of you stated that you like the maga-zine, but don’t often have time to read it. You would like more substantive articles, with focus on local court decisions and transactional law. We agree and encourage everyone to submit articles for the good of all. We know that many of you have experiences or insights that would be of benefit, so please take a few moments and share them. I know that with schedules be-ing what they are this is asking a lot, but I hope that at least some of you will consider doing so. Also to note, is that you have the option to get a printed copy or to read it online. One commenter noted they’d prefer the printed copy. If you read this and let me know who you are I can make that adjustment on or your profile. All members have the ability to change this option on the site at any time.

A number of questions were devoted to our practice sections. They are all thriving and doing well, but we want to ensure that they remain relevant and important to our members. Those

By Lisa A. Terwilliger, Executive DirectorCollier County Bar Association

“We really do read the

responses and endeavor to

make positive changes based

upon the information you

provide.”

See “Executive Director’s Corner,” page 24


State Courts Administrator (OSCA). She became the Chairperson of the Florida Supreme Court Family and Children in Courts Sub-committee on which she has served for four years.

Christine’s innovative and creative thinking has resulted in estab-lishing procedures for consistency with other stakeholders in our county and the creation of the Self-Help Center for the public and self-represented litigants in conjunction with the Clerk’s Office. She is proud of the fact that she has served in every county of this Circuit and that she is familiar with its diversity.

Some of my most cherished memories are when we would brain-storm about different bar and professional events and how we could deliver a quality product on ethical, legal, and non-tradition-al topics which affect our profession. This year, I am very proud of bringing the deleterious effects of substance abuse on a personal level both to our local bar and this past summer to the Circuit Court Judicial Conference.

Christine, I will miss you tremendously at work even though there are often weeks at a time where we only wave hello to each other. I thank you for your energy, enthusiasm, and your eternal quest for excellence in all that you did and do. I know as you begin your next chapter with David, you will bring that same energy and enthusiasm with you. I wish you well, fun and health in your travels. I may be losing a full-time colleague and next door neighbor, but I will not be losing my friend. Be well and thank you. – Lauren Brodie

What can I say about Christine? Writing something that is not a novel is truly hard for me. She is my friend, mentor, col-league, and almost step-mother. We have had great times to-gether, including my law school graduation and life at Toad Hall, and now a short time together as judges. The best advice she every game me as I was preparing to run for judge, was to act light a judge if this was where I wanted to be. She has always had wise words of wisdom for me and I will miss having her here. Have a great time in your next adventure! - Tamara Nicola

Judge Greider has been a monumental influence in my life, starting with when she was just “Christine” and I was just eight years old. For 40 years (how is that possible?), she has set a standard that has inspired me. Get involved with the CCBA, get involved with Legal Aid, consider running for the Bench, join me in Drug Court – all of her suggestions have meant amazing things for me both personally and professionally. We’ve been through dozens of chapters together, so I know as she enters the next one, she’ll continue to set the standard for me, and for countless others. Best of luck, Christine! – Janeice Martin

Dear Christine and David:Nancy and I want to express our congratulations and best wishes for both of you in your upcoming retirement! Nancy still things of you as her Lely High School student/cheerlead-er, as well as an outstanding and successful representative of the CCPS; just like Rob and Mike . Best wishes for your well-deserved and upcoming “time out”. – Hugh and Nancy Hayes

Judge Greider Tribute from page 6


By Beverly Brennan, Esq.

I’ve never thought of myself as the athletic type. Oh, I could run (slowly) in a charity 5K, and even a 10K if the t-shirt was worth it. But when a friend of mine challenged me to run a half-marathon with her, I had no idea what kind of training was required. I knew Judge Greider was a runner. She ran marathons! More than one! Surely she could help me. Little did I know that she would change my life.

Judge Greider was happy to help. We worked out a training plan and I man-aged to get across the finish line in one piece. It was exhilarating, but I learned that as soon as you run a half-marathon, everyone wants to know when you’re going to run a full one. That was definitely not part of my plan. I would stick to shorter distances, until Elite Events decided to have a marathon in Naples. How could I say no? It was my hometown - I didn’t have to travel anywhere. And Judge Greider was running the half- marathon in the same race. Once again, I turned to her for advice.

The race was a two-loop course starting and ending at the swamp buggy grounds. Judge Greider was finishing the half as I was starting on the second loop of the full. As I headed out, I saw her crossing her finish line, waving at me and yelling “trust your training!” I needed to hear that, and it meant so much to me. I finished the race, and I was sure it would be my first and last marathon.

Judge Greider had warned me that marathons were addictive; that seemed insane to me. But the next time I saw her, she said, “You should do a big marathon. It’s so different from a small town; you’ll love it.” She told me about the big races she had run – the crowds, the expo – there was nothing like it, she said. And I thought, “Why not? I’ll do the Marine Corps Marathon in Washington DC.” I like Washington, and I had a marvelous time. Judge Greider was right, it was very different, and so much fun.

After that, Judge Greider suggested I do a Disney race. “It’s right here in Florida, and a Disney race is like nothing else.” At that point I still didn’t realize I was hooked, but I registered for the Dopey Challenge – 5K, 10K, half marathon and full marathon in one weekend. If Judge Greider could do it, I could do it. Once again, she was right. Disney really knows how to throw a party.

Judge Greider and I continued to talk running whenever we had the chance. On a whim, I signed up for the New York Marathon lottery and was accepted. Toni Butler and Pam Montgomery decided to come with me for the weekend; my brother flew in from Seattle; Pam’s daughter came from Wisconsin, and #ChasingBeverly was born. They all got matching scarfs so I could spot them in the crowd, and Pam and Toni pored over the race route and the subway map to find as many places as possible to see me. On the way home, someone asked, “Where are we going next year?” The answer turned out to be Chicago.

Judge Greider had run the Chicago Marathon, and she had more advice. More people joined the #ChasingBeverly team, and this time they had matching shirts. After Chicago, we talked Pam’s daughter (who was already a runner) into

doing her first marathon, and the team became #Chasing-BeverlyChasingShell. We all went to Washington DC the following year.

The following spring, I ran the London Marathon, and the team got up at 5 AM to start a group chat with me while I was running. Even across the pond, my friends were there for me. When Judge Greider asked me how London was, that was the first thing I told her. I am so lucky to have such amazing friends, and it all started with a marathon. When people ask me why I do it, I tell them it’s Judge Greider’s fault. And I will forever be grateful.

GUEST EDITORIAL

And then Judge Greider said ...


By Michael M. Shemkus, Esq.Long, Murphy & Zung, P.A.GUEST EDITORIAL

THE RULE

A trial court should not fashion an alimony award that involves the invasion or depletion of an obligor’s assets.

Trial courts confront alimony determinations in primarily two ways: initial and modification proceedings. Although initial and modification proceedings are not treated identical in every respect, both require the trial court to consider all applicable section 61.08(2) factors in de-termining alimony. Section 61.08, Florida Statutes (2019); and Wolfe v. Wolfe, 953 So.2d 632, 636 (Fla. 4th DCA 2007) (“[A]ll applicable section 61.08(2) factors in determining alimony must be considered in modification proceedings under section 61.14.”). One of those factors, “[t]he financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each” (currently found at subsection 61.08(2)(d), F.S.), might strike some as contemplating the invasion or depletion of an obligor’s capital assets. That would be wrong.

Consider the following hypothetical:

In their final judgment of dissolution of marriage, John and Mary are each awarded $1 million in assets, and John, who earns $250,000 per year (to Mary’s $0 per year) is ordered to pay $7,000 per month in permanent periodic alimony. Five years later, John retires, resulting in a significant reduction in income from $250,000 per year to $80,000 per year. John promptly petitions for a downward modification of his alimony obligation. During trial, Mary points out that today, she has $500,000 in assets to John’s $1,000,000 in assets. Mary draws the trial court’s attention to subsection 61.08(2)(d), F.S. in arguing that the court should find that John retains an ability to pay $7,000 per month from his sizable estate, notwithstanding a reduc-tion in his income. How should the trial court rule?

Based on these limited facts, the trial court should grant John’s petition for a downward modification for the following reason.

Although a court is required to “consider” “[t]he financial resources of each party, including the nonmarital and marital assets distribution to each,” consideration should be limited to imputing a reasonable rate of return on investible assets, not the invasion or depletion of the principal of those assets.

In Galliger v. Galliger, 77 So.3d 808 (Fla. 1st DCA 2011), in its final judgment of dissolution of marriage, the trial court ordered the former husband to pay $5,000 per month to the former wife in permanent alimony. After being terminated from his position, the former husband petitioned the court for a downward modification of his alimony obligation. At trial on his supplemental petition, the former husband testified as to his personal assets and further testified that he had partially made the previous two months’ alimony payments by taking money from his savings reserve to cover the difference. Although the trial court granted the former husband’s petition by reducing his alimony obligation from $5,000 to $3,500 per month, the reduced award still consumed 81% of the former husband’s then-current net in-come, prompting the former husband to move for rehearing. After rehearing, the trial court issued an amended order granting the former husband’s petition to modify, but defending its original award, stating:

While the husband argues that his expenses exceed his income and that the support obliga-tion is an excessive amount, it does not take into consideration the other assets he has which he has used of his own admission to support himself that could also be used towards the obligation he has towards his former wife.

Invasion of capital assets in determining alimony

See “Capital Assets,” continued on page 15


Capital Assets continued

Id. at 811. The former husband promptly appealed.

On appeal, the First District concluded that the trial court abused its discretion, observing that “[w]hile the trial court may properly consider the former husband’s assets in determining his ability to pay, the court cannot require the former husband to deplete assets to make alimony payments.” Id. at 812. The First District went on to hold:

To the extent that the trial court’s alimony award is based upon a finding that the former husband had the ability to borrow funds or to deplete his assets to meet future alimony obligations, the trial court erred … [W]hile the trial court may consider assets awarded to the former husband during distribution for the pur-poses of determining alimony, requiring him to exhaust those assets to make alimony payments renders the modified alimony obligation inequitable.

Id. at 812.

The Fourth District came to a similar conclusion in its determi-nation of Kitchens v. Kitchens, 4 So.3d 1 (Fla. 4th DCA 2009). In Kitchens, the former husband went through a number of job changes, ultimately resulting in his unemployment at the age of seventy three. The former husband petitioned for a down-ward modification of his $3,500 permanent periodic alimony obligation. At the time of trial, the former husband was shown to have been taking two forms of IRA distributions: voluntary and mandatory. Although the trial court order did not expressly state how it arrived at the reduced alimony award of $1,350 per month, it was later reasoned (by the Fourth District) as having included the former husband’s voluntary IRA distributions in the calculation of his ability to pay alimony. This, the Fourth District held, was error.

On appeal, the Fourth District drew a distinction between volun-tary withdrawals that invade the principal of an obligor’s assets versus the income generated by that principal. The latter is ac-ceptable to include in calculating an obligor’s ability to pay—the former is not. Id. at 2 (“[T]reating discretionary IRA withdrawals as income for purposes of calculating alimony forces the owner to deplete the account at a faster rate and deprives the owner of the full use of an asset which, presumably, was subject to eq-uitable distribution at the time of the divorce.”).

THE EXCEPTION

There is at least one recognized exception to the “non-invasion” rule: where the parties’ standard of living required invading the principal of non-marital assets, the trial court must look to all the financial resources of the parties, including the invaded non-marital assets, when determining the amount of an alimony award. Goodman v. Goodman, 797 So.2d 1282, 1285 (Fla. 4th DCA 2001).

In Goodman, the parties enjoyed a comfortable, middle-class lifestyle until the former husband’s parents died, leaving the for-mer husband a $3.1 mil inheritance. Upon receiving the inheri-tance, the parties quit their jobs, bought a $400,000 condomin-ium, and began enjoying a lifestyle that embraced over $15,000

in expenditures per month. This elevated lifestyle continued for several years until the former wife filed for divorce. Because the evidence at trial indicated that the parties had, indeed, relied upon the invasion of the former husband’s non-marital inheri-tance to promote their marital lifestyle, the court found that it was not unreasonable to look to that asset to provide funds to support the former wife post-decree, even if it required its inva-sion.

On appeal, the Fourth District held:

Although we might agree as a general rule that a party does not have to invade the principal of non-marital assets in order to support a spouse at a standard of living never achieved during the marriage and where the parties never spent down the principal prior to dissolution, that situation is not present here. Where, as here, the parties’ standard of living required invading the principal of non-marital assets, section 61.08(2)(d) permits the trial court to look to all the financial resources of the parties, including the nonmarital assets … distributed to each. The trial court’s findings are supported by compe-tent, substantial evidence, and its decisions are not an abuse of discretion.

Id. at 1285. The First District adopted the Goodman holding just two years later when it observed:

One of the criteria used in establishing the amount of per-manent alimony is the standard of living established by the parties during the course of the marriage. Where the parties’ standard of living required invading the principal of non-mari-tal assets, the trial court must look to all the financial resourc-es of the parties, including the invaded non-marital assets, when determining the amount of an alimony award.

Stacpoole v. Stacpoole, 856 So.2d 1131, 1132 (Fla. 1st DCA 2003).

CONCLUSIONUnless the parties have established a standard of living during their marriage which involved the regular and continuous inva-sion of capital assets, same should only be considered under section 61.08(2)(d) to the extent that they are capable of gener-ating a return on investment. Principals should otherwise remain intact and protected to ensure that the owner enjoys the full use of his or her asset post-judgment.

ABOUT THE AUTHOR: Michael M. Shemkus, Esq. is an associate attorney at the law firm of LONG, MURPHY & ZUNG, P.A. in Naples, Florida. Michael’s practice is entirely devoted to Florida family law, including dis-solution of marriage, paternity, post-judgment enforcement and modification, alimony, child support, and settlement agreements.Michael M. Shemkus, Esq.Long, Murphy & Zung, P.A.700 Fifth Avenue South, 2nd Floor • Naples, Florida 34102Tel. (239) 262-3377 • Fax (239) 262-0313Email: [email protected]

2020


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2019

The Holiday Party is a perennial favorite. The joy on the faces of the children, the magic of the season, and the opportunity to spend time with our CCBA family make it so. We are especially grateful that we had the pleasure to benefit from a visit by Santa Claus, masterfully portrayed by Judge John McGowan.

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of you who are members of the Real Estate Section noted that you are unhappy with the Coach’s Room at Shula’s. I have talked to the staff and they assure me they will move us. In fact, many of the comments in this section had to do with venue and/or food. It seems time for a change to menus throughout our events. I’ll work on making that happen. What I found most interesting is that our Trusts and Estates group wants lunch. It’s been the cus-tom for the section to do free brown bag luncheons, but it seems that the tide is changing and you want us to provide food and charge for the events. I’ll work on that as well.

We also asked you about the Foundation. Most of you are happy with the Foundation and the work we do to support local orga-nizations. There were some comments regarding the types of events we host. Anyone with ideas or thoughts on our events is heartily encouraged to contact me. I’m always on the lookout for something that will be appealing to the group. A few people missed the golf tournament this year. Rest assured it will be back in 2020. The feedback we had been getting led us to believe everyone needed a year off. Look for announcements this spring regarding the date and venue. Mock Trial is an institution and will never go away. The 2020 event will take place on January 24th and 25th – there’s still time to volunteer!

Overall, I believe that the survey showed we are doing right by our members. But we never want to rest on our laurels. Without you there is no CCBA, so we are grateful for your time and at-tention to this survey. Never hesitate to send an email or give us a call and let us know what we’re doing right or what we could be doing better. I’d rather have the opportunity to make it right than to wonder why you left. As we head in to 2020 I look forward to another year with the CCBA. Thank you all for making this the best bar association around! Happy New Year!

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Documents

Vol. 186 • January 2020€¦ · Wendy Merida Pro Bono Assistant. 239-775-4982 [email protected]. Thank you to all donors to the 2019 ‘Adopt a Family’ Holiday Gift Program!