Temporary Relief Comes First | John F. Schutz, P.L.

Fla. Stat. § 61.16(1) provides that the court may, from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter:

§ 61.16. Attorney’s fees, suit money, and costs

(1) The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals. In those cases in which an action is brought for enforcement and the court finds that the noncompliant party is without justification in the refusal to follow a court order, the court may not award attorney’s fees, suit money, and costs to the noncompliant party. An application for attorney’s fees, suit money, or costs, whether temporary or otherwise, shall not require corroborating expert testimony in order to support an award under this chapter. The trial court shall have continuing jurisdiction to make temporary attorney’s fees and costs awards reasonably necessary to prosecute or defend an appeal on the same basis and criteria as though the matter were pending before it at the trial level. In all cases, the court may order that the amount be paid directly to the attorney, who may enforce the order in that attorney’s name. In determining whether to make attorney’s fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties, unless an appellate party’s cause is deemed to be frivolous. In Title IV-D cases, attorney’s fees, suit money, and costs, including filing fees, recording fees, mediation costs, service of process fees, and other expenses incurred by the clerk of the circuit court, shall be assessed only against the nonprevailing obligor after the court makes a determination of the nonprevailing obligor’s ability to pay such costs and fees. The Department of Revenue shall not be considered a party for purposes of this section; however, fees may be assessed against the department pursuant to s. 57.105(1).

In Robbie v. Robbie, 591 So.2d 1006 (Fla. App. 1991), the Florida Fourth District Court of Appeal noted that Fla. Stat. § 61.16 allows applications for allowance of fees under section 61.16 “from time to time” (at 1009-1010):

While a lodestar analysis may be useful as a starting point in considering a final allowance of fees under section 61.16, we find it inappropriate for interim awards. For one thing, section 61.16 allows such applications “from time to time.” Hence in one dissolution case, a single interim award may be all that is necessary to level the playing field, while in another case monthly

Page 1010

or other periodic applications may be called for. Moreover, because the case is just beginning or has not been tried when an interim allowance is sought, there is no way of knowing many of the Rowe elements, such as who is the prevailing party, how many hours were actually necessary to present the case, what are the results achieved, and so on.

In Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980) (“Canakaris“), the Florida Supreme Court held that the purpose of Fla. Stat. § 61.16 is to ensure that both parties will have a similar ability to secure competent legal counsel (at 1204-1205):

The final issue presented to us is whether the award of the wife’s attorney’s

Page 1205

fees, to be determined at a subsequent hearing, was error. In Cummings v. Cummings, 330 So.2d 134, 136 (Fla.1976), we cited Mertz v. Mertz, 287 So.2d 691 (Fla. 2d DCA 1973), as correctly stating that the purpose of section 61.16, Florida Statutes, was to ensure that both parties will have similar ability to secure competent legal counsel. Without question, the financial positions of the parties in this proceeding are not the same. The husband has a superior financial ability to secure and pay counsel. It is not necessary that one spouse be completely unable to pay attorney’s fees in order for the trial court to require the other spouse to pay these fees. Given the complexity of the cause and the time necessary to appropriately resolve the issues, the award of attorney’s fees in this case was proper to avoid an inequitable diminution of the fiscal sums granted the wife in these proceedings.

In Nichols v. Nichols, 13 Fla. L. Weekly 71, 519 So.2d 620 (Fla. 1988), the Florida Supreme Court explained that where one spouse is effectively unable to pay for legal counsel and the other suffers no similar disability, the very purposes of Florida’s dissolution statute are jeopardized and the trial court risks inequity. This conclusion is no less true because the request is for temporary fees (at 622):

Under section 61.16, it is irrelevant that the legal fees in question are temporary or final or that a spouse appears at a hearing with counsel. Where one spouse effectively is unable to pay for legal counsel and the other suffers no similar disability, the very purposes of Florida’s dissolution statute are jeopardized and the trial court risks inequity. This conclusion is no less true because the request is for temporary fees.

Thus, the appropriate inquiry and standard to be applied is the same whether the fees requested are temporary or final. See, e.g., Deakyne v. Deakyne, 460 So.2d 582 (Fla. 5th DCA 1984); Hirst v. Hirst, 452 So.2d 1083 (Fla. 4th DCA 1984); Johns v. Johns, 423 So.2d 443 (Fla. 4th DCA 1982); Locke v. Locke, 413 So.2d 431 (Fla. 3d DCA 1982). A determination on any other basis would constitute an abuse of discretion. However, we find no such abuse upon this record.

In Duncan v. Duncan, 642 So.2d 1167 (Fla. App. 1994), the Florida Fourth District Court of Appeal stated that the purpose of Fla. Stat. § 61.16, which authorizes interim awards of suit money, is to ensure that both parties to a dissolution proceeding have a similar ability to secure competent legal counsel and can thus fight the action on a nearly equal footing (at 1168):

The purpose of section 61.16, Florida Statutes (1993), which authorizes interim awards of suit money, is to “ensure that both parties to a dissolution proceeding have similar ability to secure competent legal counsel” and can thus fight the action on a nearly equal footing. Nichols v. Nichols, 519 So.2d 620 (Fla.1988), quoted in Robbie v. Robbie, 591 So.2d 1006, 1009 (Fla. 4th DCA 1991). As such, the appropriate inquiry is whether one spouse has a need for suit money and the other has the ability to pay. Armstrong v. Armstrong, 623 So.2d 1216 (Fla. 4th DCA 1993); Robbie, 591 So.2d at 1009.

In Fisher v. Bond, 906 So.2d 1248 (Fla. App. 2005), released on July 27, 2005, the Florida Third District Court of Appeal noted that the dissolution of marriage action was filed by the wife in October 2004 and financial affidavits had been filed by the parties, yet the wife still had not been afforded a hearing to address the issue of temporary support and fees. The Court held that the better approach in this case, where the wife demonstrated financial need, would have been to hold a hearing on the temporary support issues at the beginning of the litigation. The net effect of the refusal to schedule a hearing was to deny a needy spouse any temporary support or fees. Citing Canakaris, supra,the Court held that, in not doing so, the trial court abused its discretion. The Court of Appeal also held that the trial court similarly abused its discretion in requiring that the wife be available for a deposition before a hearing on the temporary issues could be held. There is no such requirement in chapter 61, Florida Statutes, or in the Florida Family Law Rules of Procedure (at 1249):

According to the record before us, this dissolution of marriage action was filed by the wife in October 2004, financial affidavits have been filed by the parties, and still the wife has not been afforded a hearing to address the issue of temporary support and fees. Clearly, in a situation such as this where the wife has cancer and has demonstrated financial need, the better approach would have been to hold a hearing on the temporary support issues at the beginning of the litigation. The net effect of the refusal to schedule a hearing is to deny a needy spouse any temporary support or fees. In not doing so, the trial court abused its discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). In addition, the trial court also abused its discretion in requiring that the wife be available for a deposition before a hearing on the temporary issues can be held. There is no such requirement in chapter 61, Florida Statutes, or in the Florida Family Law Rules of Procedure.

(Emphasis added).

In Scherer v. Scherer, 150 So. 2d 496, 1963 Fla. App. LEXIS 3471, 98 A.L.R.2d 1260 (Fla. Dist. Ct. App. 3d Dist. March 5, 1963), the wife moved for temporary attorney’s fees. Her motion was heard on September 18, 1962, after which the chancellor took the matter under advisement, but the chancellor did not issue a ruling. Prior to trial of the divorce action, the appellant moved for a continuance pending a ruling on her motion for temporary attorney’s fees on the ground that she was without the funds necessary to adequately pursue the action. Her motion for a continuance was denied. The wife appealed the denial of the continuance.

The majority of the Florida Third District Court of Appeal affirmed the order denying the continuance. However, the Court noted that, although the inaction of the chancellor with respect to the appellant’s failure to rule on her motion for temporary attorney’s fees and costs was not under direct review in the appeal, the appellant was entitled to an expeditious ruling on that motion (at 498):

The appellant complains of the chancellor’s failure to rule on her motion for temporary attorney’s fees and costs after the same had been orally argued and taken under advisement. Although the inaction of the chancellor in this regard is not under direct review in this appeal, we note our agreement with the appellant that she is entitled to an expeditious ruling on this motion.

We have considered the appellant’s remaining contentions and find them to be without merit. Accordingly, the order appealed is affirmed with leave to the appellant to file a responsive pleading within the time provided in said order.

In Hogan v. Aloia, 257 So.3d 479 (Fla. App. 2018), two weeks before the scheduled trial, the former wife moved to continue the trial for a hearing on temporary relief as well as other matters. According to the former wife, the court did not consider her motion until she filed a second motion on the day of trial. The court denied the motion for a continuance. The former wife complained that she had requested attorney’s fees, but had never received them.

The majority of the Florida Fourth District Court of Appeal noted that the wife moved three times for temporary attorney fees, but there were no orders on these motions in the record. During trial, the former wife did not present any evidence of attorney’s fees or request them. Therefore, the Court held that the trial court was in no position to award the former wife attorney fees where no evidence was presented on the matter. However, the Court of Appeal remanded the case and noted that the trial court was not precluded from awarding fees upon remand (at 484-485):

The former wife argues the trial court failed to rule on her request for attorney’s fees, temporary and otherwise, under section 61.16, Florida Statutes. She asserts that the parties’ testimony supported an award, as she had a need and the former husband had an ability to pay. The former husband responds that the former wife failed to introduce evidence related to attorney’s fees at the final hearing.

In her modification petition, the former wife sought attorney’s fees. She moved three times for temporary attorney’s fees and costs over a three-month time period. Two weeks before the February 24 trial date, she moved for continuance, and alleged that her request for fees was never heard due to court availability. She further alleged the court struck her motion for temporary fees without prejudice in February 2017 because she was unavailable for a deposition. The former wife filed another motion for temporary fees ten days before the February 24 trial date.

There are no orders on these motions in the record. During trial, the former wife did not present any evidence of attorney’s fees or request them. In short, the trial court was in no position to award the

[257 So.3d 485]

former wife attorney’s fees where no evidence was presented on the matter. This does not preclude the court from awarding fees upon remand.

Authorities

Fla. Stat. § 61.16 (2022)

Robbie v. Robbie, 591 So.2d 1006 (Fla. App. 1991)

Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980)

Nichols v. Nichols, 13 Fla. L. Weekly 71, 519 So.2d 620 (Fla. 1988)

Author
Recent Posts

admin

Who Can Decide If Child Has Surgery When Parents Disagree

Feb 1, 2017

In May, a Florida appeals court rejected the argument that[...]

Ralph T. White Jr. Achieves Board Certification

Feb 7, 2017

The National Board of Trial Advocacy (NBTA) is pleased to[...]

Florida Same-Sex Couples Facing Divorce Issues

Jun 22, 2015

The 2nd District Court of Appeal ruled last week that[...]