The issue of whether the trial court erred in denying our client’s motion for attorney’s fees based on a charging lien merely because our client did not call an independent expert witness to testify concerning the reasonableness of the fees has been certified to the Florida Supreme Court.

Our client, an attorney, represented the Former Wife in a dissolution of marriage proceeding. Our client and the Former Wife entered into a retainer agreement which provided for an initial non-refundable retainer, an hourly rate for attorney and paralegal time, and a lien for monies due under the agreement. The agreement also required the Former Wife to notify our client, in writing, within thirty days, if there was an objection to the fees charged. The Former Wife paid $48,268 of the total billed, leaving a balance of $57,785.28. The Former Wife did not object in writing to the fees charged. In the dissolution action, our client filed a Notice of Charging Lien, a Corrected Motion for Entry of Final Judgment Adjudicating Charging Lien and for Entry of a Money Judgment, and a Motion to Withdraw. The trial court granted the Motion to Withdraw, held a final hearing of the dissolution, and heard our client’s attorney’s fees motion. Although the trial court received into evidence the retainer agreement, the complete billing history, and the Notice of Charging Lien, the trial court denied our client’s motion citing to the missing testimony from an independent expert witness concerning the reasonableness of the fees.

The Fourth District Court of Appeal reluctantly affirmed the trial court’s decision, but certified the question to the Florida Supreme Court as to whether independent expert testimony was necessary. The Fourth District Court of Appeal noted that “[t]here is little reason to simply increase litigation costs by requiring another lawyer to testify as an expert. After all, each party usually chooses a lawyer friend . . . [, and] [t]he trial court is ultimately left to decide the reasonableness of the rate charged and time expended, and then to tax the cost of the expert witness against the losing party.”

While there are specific mandates under Florida law that require the Florida Supreme Court to grant review in certain instances, for most practitioners, getting your case heard by the Florida Supreme Court can seem as daunting as getting a front seat at the Kodak Theater during the Oscars.  Alas, Robin I. Bresky and Diana L. Martin have offered a practical guide for those practitioners seeking entry into the highest court in the state.  Robin Bresky co-authored Taking the Pathway of Discretionary Review Toward Florida’s Highest Court, which was featured in the November 2009 issue of the Florida Bar Journal.  The article is intended to help practitioners navigate the Florida Supreme Court’s red carpet and assess the likelihood of gaining access behind its discretionary velvet ropes.

Florida Rule of Appellate Procedure 9.120 sets out the procedural mandates necessary to invoke the Florida Supreme Court’s jurisdiction.  The more challenging task, however, becomes convincing the Court to exercise its jurisdiction.  For example, Florida Supreme Court Clerk statistics indicate that of the cases submitted to the high court for consideration, only 7% of cases seeking discretionary review, which do not involve cases of certified questions or certified conflicts, are granted review.  On the other hand, the Court grants review in approximately 67% of cases that involve certified questions and approximately 83% of certified conflict cases.  See, Florida Appellate Practice § 3.21.  Therefore, in cases where the district court has not certified a question or certified a conflict, the true hurdle remains convincing the Court to accept discretionary jurisdiction.

In addition to outlining the relevant constitutional provisions and appellate rules, the article discusses eight categories of discretionary review and provides practical guidance, including outlining timeframes for attorneys considering an appeal to Florida’s Highest Court.  As highlighted above, the article cites useful statistics that illustrate the types of cases that make it through and those that do not fare as well.  It proves helpful not only to appellate practitioners, but more so to any attorney that has found himself in the position of advising a client on a decision to seek review in Florida’s Highest Court.  Afterall, it will take more than a “Best Dressed” nod from Joan Rivers to get you through these velvet ropes.  For more on Taking the Pathway of Discretionary Review Toward Florida’s Highest Court, please visit www.breskyappellate.com for the complete article or refer to the November 2009 issue of the Florida Bar Journal.

Many people understand the reality and importance of complying with a court’s order directing that child support payments be made on behalf of their children. What some may not realize is the failure to comply with said obligation could potentially result in a number of sanctions, including garnishment of wages, suspension of a driver’s license, or imprisonment.  The law, however, is clear as to the procedure that must be followed prior to the imposition of various sanctions.

We were recently successful in obtaining a stay of proceedings pending appeal, of a civil contempt order suspending our client’s driver’s license based on failure to pay child support arrearages in another state.  Under the Florida Family Law Rules of Procedure, an individual may have his or her driver’s license suspended as a sanction for failing to pay court ordered child support.  Pursuant to the rules of appellate procedure, a motion to stay proceedings must first be made in the lower tribunal.  If unsuccessful, the motion to stay proceedings can then be made in the appellate court.  In this particular case, we explained to the trial court that due to procedural deficiencies with the order on review, we had a good chance of prevailing on appeal.  On appeal, we are arguing that the order is subject to reversal where the judge failed to set a purge amount.  At the conclusion of the hearing of the Motion to Stay Proceedings, the trial judge, acknowledging the order’s failure to state a purge amount, had the driver’s license suspension recalled pending the outcome of the appeal.

In order to suspend an individual’s driver’s license for failure to pay child support, several findings must be made by the trial court.  First, the court must determine that the child support was owed and a failure to pay has occurred. Second, the court must then set a purge amount, meaning that the court must set an amount that the individual must pay in order to avoid or end the sanction of driver license suspension.  Finally, the court must make a finding that the individual has the ability to pay the purge amount.  In our case, the trial judge found that the client failed to pay court ordered child support, but did not set a purge amount or make a finding that a present ability to pay a purge amount existed.  Thus, we were successful in having the suspension recalled pending the appeal.  For more, see, e.g., Gregory v. Rice, 727 So. 2d 251 (Fla. 1999); Larsen v. Larsen, 901 So. 2d 327 (Fla. 4th DCA 2005).

Florida Rule of Appellate Procedure 9.200 dictates what documents shall be included in the record on appeal.  In relevant part, the rule states:

Except as otherwise designated by the parties, the record shall consist of the original documents, exhibits, and transcripts(s) of proceedings, if any, filed in the lower tribunal….

9.200(a)(1), Fla. R. App. P.  The record, and the documents that comprise the record, become of great import when an appellate court is reviewing a final decision of a lower tribunal.  Generally, decisions of lower courts are presumed to be correct and unless the presumption of correctness is overcome by matters crystallized in the record of the proceedings, the appellate court will affirm the order or judgment on review.  There are, however, instances in which a document that was not formally filed in the lower tribunal may be permitted to supplement the record on appeal.

For example, we recently handled a family law appeal wherein a psychologist in the case below rendered an opinion that the wife had been the victim of battered spouse syndrome throughout the marriage.  At trial, however, the doctor testified orally but his deposition testimony was never entered into evidence.  Nevertheless, opposing trial counsel sought to impeach the doctor’s oral testimony and alluded to his deposition testimony in an attempt to show that the doctor’s opinion had changed from the time of the deposition to that of trial.

One of the findings the trial court made in its final order was that the doctor had changed his expert opinion at trial from that which he gave at his deposition.  On appeal, we sought to introduce the doctor’s deposition testimony to show that his opinion had not in fact changed when he gave his oral testimony at trial.  We filed a motion to supplement the record on appeal with the doctor’s deposition testimony, pursuant to Fla. R. App. P. 9.200(f).  Opposing appellate counsel objected to our motion on the ground that the doctor’s deposition was not entered into evidence.  The District Court, however, ruled in our favor, based on our argument that the trial court below relied upon the deposition testimony to the extent the final order included a finding that the doctor’s deposition testimony changed at trial.  Therefore, as you can see factual situations do arise in which a District Court may permit the record on appeal to be supplemented with a document that was not officially included in the record, even
over the objection of opposing counsel.

In addition to our appellate practice, we also offer litigation support including, but not limited to, drafting complex motions and memoranda of law for attorneys throughout all phases of pre-trial litigation.  The firm was recently retained to draft a memorandum of law on the application of Florida Statute 61.13001.  Specifically, the trial court requested that counsel prepare a memorandum addressing whether section 61.13001, the Parental Relocation with a Child, applied in the absence of a prior court order.  In this particular case, the mother sought an expedited hearing on relocation and we, on behalf of the father, contended that under section 61.13001, the father was entitled to file an objection to relocation and that further the court should make the considerations and findings sufficient to support relocation in a final judgment, pursuant to section 61.13001(6)(b).  Our efforts resulted in a victory for the client and the wife’s motion for expedited hearing was denied.

Section 61.13001 became effective October 1, 2006 and was intended to define and clarify the relocation process.  A literal reading of the statute, however, suggests that the statute only applies where there is an existing order in place.¹  But, this literal reading of the statute would contravene the intent in Florida to be sure that all custody and relocation matters be determined in accordance with the best interests of the child.  Interestingly, the Florida Supreme Court has proposed an amendment to the Family Law Rules of Procedure, Rule 12.635², which would apply “to all proceedings to relocate the residence of a child under section 61.13001, Florida Statues,” without regard as to whether there is a prior court order in place.

It remains to be seen whether the proposed amendment will become effective.  It is also unclear as to how the trial courts will interpret and apply the relocation in the absence of a prior court order.  It seems counterintuitive to have such a formal procedure established for the consideration of a child’s relocation and only have the procedure apply at the existence of previous court order.  It seems the more practical application, as illustrated by the proposed amendment, is to consider all factors as set forth in section 61.13001 anytime the issue of a child’s relocation is brought before the court, irrespective of whether there has been a previous determination in the form of a court order.

¹ APPLICABILITY. –This section applies:
1. To orders entered before October 1, 2006, if the existing order defining custody, primary residence, time-sharing, or visitation of or with the child does not expressly govern the relocation of the child.
2. To an order, whether temporary or permanent, regarding the parenting plan, custody, primary residence, time-sharing, or visitation of or with the child entered on or after October 1, 2006.
3. To any relocation or proposed relocation, whether permanent or temporary, of a child during any proceeding pending on October 1, 2006, wherein the parenting plan, custody, primary residence, time-sharing, or visitation of or with the child is an issue.
(b) To the extent that a provision of this section conflicts with an order existing on October 1, 2006, this section does not apply to the terms of that order which expressly govern relocation of the child or a change in the principal residence address of a parent.
2 See, http://www.floridasupremecourt.org/decisions/proposed.shtml.