Law Offices of Robin Bresky Obtains Reversal of Temporary Attorney’s Fees Award in Modification of Alimony Proceedings

Giorlando v. Giorlando, 4D12-1220

The Law Offices of Robin Bresky recently won reversal of a trial court’s award of temporary attorney’s fees and costs in a petition for modification of alimony. The parties’ marriage was previously dissolved and a marital settlement agreement (“MSA”) was incorporated in the Final Judgment of Dissolution. The MSA imputed $40,000 of yearly income to the former wife for purposes of determining alimony and child support.

The former wife filed a petition for modification of alimony and child support six years after the dissolution of marriage, alleging that substantial changes had occurred in both parties’ financial situations that warranted an increase in the alimony and child support she received. The trial court held a hearing at which both parties testified. The trial court later awarded the former wife $79,333.71 in total professional fees and costs without imputing the $40,000 in yearly income to the former wife pursuant to the MSA.

On appeal, we argued that the trial court should have imputed $40,000 in yearly income to the former wife as provided in the Final Judgment of Dissolution and MSA. The Fourth DCA agreed, and held that the $40,000 must be taken into account in the trial court’s determination of whether to award temporary fees. The Fourth DCA noted that the former husband had testified on the record to the decline in his construction business due to the economy, and that there had been no explanation for why the former wife’s need had increased. The Fourth DCA stated that the former wife should have the burden of explaining why the imputed income should not be considered.

Miller v. Bohan, 4D11-1169

The Law Offices of Robin Bresky recently won an affirmance of a final judgment in our client’s favor in an appeal involving a trust amendment. Our client’s remaining living sister brought a lawsuit against our client contesting the trust amendment their deceased sister had executed in favor of our client. Our client’s remaining living sister argued that our client, who had helped care for her ill sister at the end of her life, had exercised undue influence over her sister in the execution of the trust amendment prior to her death. The trial court found that our client had successfully rebutted the legal presumption of undue influence arising from her involvement in the execution of the trust amendment. The trial court found after listening to all of the evidence at trial that the deceased sister knew what she was doing when she amended her trust, that she had her own valid reasons for amending the trust, and that she knew what she was doing on the day she executed the amendment.

On appeal, our client’s remaining living sister argued that the trial court had failed to correctly apply the burden-shifting procedure required by section 733.107, Florida Statutes, to evaluate whether our client successfully rebutted the presumption of influence. Our firm argued that the trial court had diligently applied the evidence to the appropriate legal framework established by the statute and had properly concluded that there was no undue influence. We also argued that competent substantial evidence in the record supported the factual findings made by the trial court in the final judgment.

The Fourth DCA issued a per curiam affirmance (“PCA”) affirming the trial court’s final judgment in favor of our client. The Fourth DCA also awarded our client attorney’s fees in connection with the appeal. This result preserved the final judgment in favor of our client and maintained the trust amendment in accordance with the wishes of her deceased sister.

The Law Offices of Robin Bresky recently won a motion for rehearing of an order of contempt that held our client in contempt for failure to pay an award of temporary attorney’s fees. We are in the process of appealing the underlying order requiring our client to pay fees to opposing counsel. The parties were divorced in 2005 and the final judgment of dissolution incorporated a marital settlement agreement that detailed the former husband’s alimony obligation. In 2011, the former wife filed a petition for modification of alimony seeking an increase in her alimony based on her allegations that the parties’ financial circumstances had changed substantially. As part of her petition, the former wife requested an award of temporary attorney’s fees. The trial court conducted a hearing and awarded the former wife $79,333 in attorney’s fees for the modification litigation.

Our client, the former husband, was unable to pay the temporary fee award due to a downturn in his business attributable to poor economic conditions. The former wife later filed a motion for contempt against our client based on his failure to pay. The trial court conducted a contempt hearing and then granted the former wife’s motion to hold our client in contempt.

Our firm filed a motion for rehearing of the order granting the former wife’s motion for contempt. We stressed that civil contempt requires a court finding of both a party’s willful non-compliance and that a party has the present ability to comply with the court’s order. We argued that the trial court had failed to adequately identify the means by which our client could satisfy the purge amount, and also that the order of contempt was improperly based in part upon a prospective ability to pay because it assumed our client would be able to make future regular payments to the former wife’s attorney. We argued that this framework ran contrary to the legal principle that contempt must be based upon a present ability to pay. We also argued that the trial court had failed to make findings that our client had equity in certain assets that the trial court had identified.

The trial court held a hearing and agreed with our position. The trial court rendered an order granting the motion for rehearing of the order granting the former wife’s motion for contempt. This positive outcome undid the order of contempt and prevented our client from being put in jail for not paying an attorney’s fee award that he could not afford to pay.

The Law Offices of Robin Bresky recently obtained entitlement to appellate attorney’s fees in several appeals in which it prevailed. Additionally, Florida Rule of Appellate Procedure 9.400(a) provides that a prevailing party on appeal is entitled to recover its costs for litigating an appeal unless the appellate court orders otherwise. The recovery of appellate attorney’s fees and costs following a victory on appeal can sometimes be confusing for parties unfamiliar with the procedure. A brief explanation of the process follows. The general procedure is outlined below, but will differ somewhat where fees are granted as a sanction for a party’s or attorney’s conduct.

The most important point for practitioners to understand in recovering appellate attorney’s fees is that the appellate court typically only awards a party entitlement to appellate attorney’s fees. A party’s entitlement to fees will be based upon a substantive statute or contract. The party will then need to seek the actual award of appellate attorney’s fees in the trial court following remand. However, the appellate court does not award entitlement to fees automatically – a party must file a motion requesting its fees in the appellate court.

The correct procedure for a party to ensure recovery of its appellate attorney’s fees is to first make sure to file a timely motion for appellate attorney’s fees in the appellate court. Rule 9.400(b) requires that a fees motion be filed no later than the time for the appellant’s reply brief, and must state the grounds for entitlement. If the party requesting fees prevails on appeal and the appellate court grants the motion for fees, the appellate court’s order will often contain language stating that the trial court is to determine the amount. In family law cases, the appellate court’s order will often state that the fees are granted conditioned upon the trial court’s determination of the party’s need and the other party’s ability to pay.

The procedure to recover costs is a bit simpler. No motion requesting entitlement to costs is necessary in the appellate court. Pursuant to Rule 9.400(a), a party has thirty days from the issuance of the appellate court’s mandate to serve a motion in the trial court seeking the party’s appellate costs for the successful appeal. Rule 9.400(a) provides a list of included taxable cost items. Although there is no corresponding 30-day deadline for a motion for appellate attorney fees to be filed in the trial court, the better practice is to file both the motion for costs and fees in the trial court within thirty days of the appellate court mandate.

Goldstein v. Goldstein
Case No. 4D10-3081

We represented a former wife in an appeal from an amended final judgment of dissolution of marriage. The trial court had denied our client her attorney’s fees and costs without making any findings as to our client’s need and the former husband’s ability to pay. Additionally, in the equitable distribution the trial court had attributed to our client a marital account that she had used to pay living expenses after the former husband had moved out and stopped paying any of the bills associated with the marital home.

On appeal, we argued that the trial court abused its discretion in denying our client her fees and costs without making the appropriate findings as to need and ability to pay. We also argued that the trial court had erred in attributing the depleted account to our client in equitable distribution where the trial court had not made the required finding that depletion of the account was due to any misconduct by our client.

The Fourth District Court of Appeal agreed that the trial court had erred in failing to make the findings regarding need and ability to pay attorney’s fees and costs. The Fourth DCA further held that the trial court erred in denying our client her fees and costs, based on the significant income disparity between the parties as shown by the record. The Fourth DCA also held that the depleted account could not be attributed to our client in equitable distribution without a finding of misconduct, and that our client’s actions in spending the funds on reasonable living expenses did not qualify as such misconduct. See Tillman v. Altunay, 44 So.3d 1201, 1203 (Fla. 4th DCA 2010); Sheehan v. Sheehan, 943 So. 2d 818, 822 (Fla. 4th DCA 2006). The Fourth DCA reversed the amended final judgment and remanded it to the trial court for an award of fees to our client and a credit to her of her marital portion of the depleted account to be included in her equalizing payment.

** [Note: At the time of this posting, the Fourth DCA mandate has not issued. The decision will not be final until disposition of any timely filed motion for rehearing. ] **

Hallac v. Hallac
Case No. 4D10-4450

We represented a former wife in an appeal from the trial court’s order on opposing motions for attorney’s fees following trial. On appeal, our firm argued that it was legal error for the trial court to have used our client’s refusal of a settlement offer and the fact that she later obtained a less favorable result at trial as a basis to punish her in the attorney’s fee award.

The Fourth DCA agreed in part. The Fourth DCA held that the trial court was allowed to deny our client her fees for her failure to accept the settlement offer because under Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997), a trial court is allowed to consider settlement offers and the results obtained by a party in making an award of fees under section 61.16, Florida Statutes (2009). However, the Fourth DCA found that the former husband had no “need” to support a statutory award of fees to him, and that our client’s conduct in refusing the settlement offer did not rise to the level of vexatious or bad faith conduct sufficient to support an award against her under the court’s inherent authority to prevent such conduct.

The Fourth DCA reversed the award of fees to the former husband. This favorable result would allow our client to obtain the fees she was awarded for work prior to her rejection of the settlement offer, free of the setoff resulting from the award to the former husband. However, the former husband then filed a motion for rehearing, rehearing en banc, and certification of conflict. The former husband asked the Fourth DCA to revisit its decision on the grounds that the decision conflicted with decisions from the Florida Supreme Court and other Florida district courts of appeal.

We opposed the former husband’s motions. We argued that the Fourth DCA’s decision in this case did not conflict with any of its previous decisions. Furthermore, while we acknowledged some general conflict between the Fourth DCA’s decision in this case and decisions from other district courts of appeal, we argued that the conflict would not change the result in this case due to the Fourth DCA’s holding that our client’s conduct did not amount to bad faith or vexatious litigation. On June 5, 2012, the Fourth DCA denied the former husband’s motions, and we successfully preserved our client’s appellate win in the Fourth DCA.

Hallac v. Hallac
Case No. 4D10-4450

We represented a former wife in an appeal from the trial court’s order on opposing motions for attorney’s fees following trial. Early in the dissolution of marriage case, our client had rejected the former husband’s settlement offer and made a counteroffer. The case proceeded to trial and our client obtained a result less favorable than the former husband’s last settlement offer. Following trial, the trial court used our client’s refusal of the settlement offer as a basis to both deny our client her attorney’s fees for work after the refusal of the offer, and award the former husband his attorney’s fees incurred for the time period after our client rejected the offer. The trial court made the award despite the fact our client had virtually no income and the former husband had an annual income over $500,000 combined with substantial premarital assets.

On appeal, our firm argued that it was legal error for the trial court to use our client’s refusal of the settlement offer and the fact that she later obtained a less favorable result at trial as a basis to punish her in the attorney’s fee award. The Fourth DCA agreed in part. The Fourth DCA held that the trial court was allowed to deny our client her fees for her failure to accept the settlement offer because under Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997), a trial court is allowed to consider settlement offers and the results obtained by a party in making an award of fees under section 61.16, Florida Statutes (2009). However, the Fourth DCA found that Former Husband had no “need” to support a statutory award of fees to him, and that our client’s conduct in refusing the settlement offer did not rise to the level of vexatious or bad faith conduct sufficient to support an award against her under the court’s inherent authority to prevent such conduct.

The Fourth DCA therefore reversed the award of fees to the Former Husband. This favorable result allows our client to obtain the fees she was awarded for work prior to her rejection of the settlement offer, free of the setoff resulting from the award to the Former Husband.
** [Note: At the time of this posting, the Fourth DCA mandate has not issued. The decision will not be final until disposition of any timely filed motion for rehearing. ] **

Rahabi v. FIGA
Case No. 4D10-846*

The issue on appeal was whether our clients were entitled to an award of attorney’s fees because FIGA affirmatively denied our clients’ claim under the insurance policy prior to paying the appraisal award.

Our clients’ roof was damaged by Hurricane Wilma in 2005. Our clients sought coverage under the insurance policy to repair their roof. FIGA took over our clients’ insurance policy with Atlantic Preferred. In 2007, our clients filed a complaint and, initially, FIGA moved for dismissal. Later, FIGA filed an answer with affirmative defenses, and, after several months of discovery, FIGA decided to send the dispute for appraisal. An appraisal award was issued to our clients and FIGA paid the appraisal award. Our clients requested an award of attorney’s fees and costs from the trial court. The trial court denied the request reasoning that FIGA never affirmatively denied coverage of our clients’ claim. Our clients appealed arguing that FIGA affirmatively denied their claim by its actions.

The Fourth District Court of Appeal agreed. The court held that FIGA affirmatively denied our clients’ claim by asserting, in several of its affirmative defenses that our clients’ damages “were not caused by a covered loss.” The court disagreed with FIGA’s argument that its actions amounted to no more than a delay in payment of the claim. The court distinguished our clients’ decision from its recent decision in Ehrlich in which it held that FIGA did not affirmatively deny the party’s claim by filing its affirmative defenses because it was forced to file the pleading by a court order and sought an extension of time to complete its investigation. The court held that, in our clients’ case, FIGA neither sought an extension to complete its investigation nor had a court order compelling it to file a responsive pleading. The Fourth District Court of Appeal reversed and remanded with instructions that the trial court set an evidentiary hearing to determine our clients’ reasonable sum of fees and to determine whether our clients were entitled to a reimbursement of their costs.

* The Mandate has yet to be issued.

Chrysler Group, LLC v. Musacchia, 4D10-212
June 8, 2011

The Fourth District Court of Appeal recently reversed a trial court decision granting a claim for attorney’s fees under section 681.112(1), Florida Statutes (2006).  The Musacchias filed a successful arbitration action against Chrysler with the Lemon Law New Motor Vehicle Arbitration Board after they experienced numerous problems with a Jeep Commander they had leased. The board determined that the vehicle was in fact a “lemon” and that the Musacchias were entitled to a refund. The Musacchias later filed suit under section 681.112(1) seeking their attorney’s fees from the arbitration as “damages” resulting from their purchase of the vehicle.  The trial court awarded the Musacchias their attorney’s fees.

On appeal, the Fourth District, citing its recent decision in General Motors v. Bowie, 58 So. 3d 934, 935 (Fla. 4th DCA 2011), held that “‘damages’ under section 681.112 do not include attorney’s fees incurred in pursuing the refund option through arbitration.” Consequently, the Fourth District reversed the decision of the trial court with directions to enter judgment for Chrysler.

Carlin v. Javorek

The issue was whether the Supreme Court should exercise its discretionary jurisdiction to review of the Fourth District Court of Appeal’s reversal of a trial court’s order denying an award of attorney’s fees to our client.

The Fourth District Court of Appeal recently reversed a trial court decision holding that our client was not entitled to attorney’s fees despite finding that the opposing party was in breach of the parties’ settlement agreement. The trial court found that the opposing party breached the settlement agreement by failing to produce the required medical forms and failing to execute a medical release. However, the trial court held that the breach was not material and denied both parties’ requests for attorney’s fees. The Fourth District Court of Appeal reviewed the issue de novo and held that the trial court did not err in denying the opposing party’s request for attorney’s fees, but erred in finding that the opposing party’s breach was immaterial and in denying our client’s request for reasonable attorney’s fees pursuant to the parties’ settlement agreement. The Fourth District Court of Appeal found that the opposing party materially breached the settlement agreement and that the settlement agreement’s clear and unambiguous terms mandated an award of attorney’s fees to our client as the prevailing party. The opposing party petitioned the Supreme Court for discretionary review claiming that the Fourth District Court of Appeal’s decision expressly and directly conflicted with other district court and Supreme Court decisions. Our law firm continued representation of our client in the Supreme Court. Jurisdictional briefs were filed by both parties.

In agreement with the arguments in our jurisdictional brief, the Supreme Court declined to exercise its discretionary jurisdiction, denied opposing party’s petition for review, and awarded additional attorney’s fees to our client.