SEENA TONKIN BERK, APPELLANT,
v.
HERBERT BERK, APPELLEE
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Seena Berk appealed a trial court's denial of attorney fees in a marital settlement agreement dispute. The court reversed, finding that Berk was clearly the prevailing party entitled to attorney fees under the settlement agreement's dispute resolution clause, and remanded for determination of reasonable fees.
Seena Berk was clearly the prevailing party in the contract dispute and is entitled to recover a reasonable attorney fee under the settlement agreement. The master's finding that neither party was a prevailing party was clearly erroneous and must be reversed.
[1] A party who successfully enforces a provision of a marital settlement agreement requiring the other party to pay medical bills is the prevailing party entitled to attorne…
[2] A marital settlement agreement provision entitling the prevailing party to attorney fees in a dispute arising from the agreement is enforceable.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“should a dispute arise concerning this Agreement, the prevailing party shall be entitled to a reasonable attorney fee.”
The contract provision at the heart of the dispute, establishing that the prevailing party in any dispute over the settlement agreement would receive attorney fees.
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Join FLexlaw to unlock all legal intelligenceA final judgment of dissolution of marriage incorporated a marital settlement agreement providing that the prevailing party in any dispute would be en…
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PER CURIAM.
Seena Berk appeals an order of the trial court which denied her claim for attorney fees incurred in enforcing the terms of a property settlement agreement. We reverse.
The final judgment of dissolution of marriage incorporated a marital settlement agreement which provided:
7. Each party shall pay their own attorneys’ fee for the preparation and negotiation of this Agreement. However, should a dispute arise concerning this Agreement, the prevailing party shall be entitled to a reasonable attorney fee.
A dispute arose when appellee refused to honor a provision of the agreement which required him to pay several medical bills incurred by appellant. The trial court referred appellant’s motion to enforce the final judgment by contempt to a master. The master found appellee responsible for the medical bills and found appellant entitled to appropriate relief other than contempt. The trial court ratified and approved the master’s recommendations for enforcement of the terms of the marital settlement agreement.
However, for some unexplained reason, the master also found that neither party was a prevailing party as contemplated by the agreement, and recommended that the parties pay their own attorney fees. The trial court adopted the recommendation of the master. It is difficult to imagine a more clear cut example of a prevailing party in a contract dispute. The master’s finding is clearly erroneous and must be reversed.
We recognize that the proceedings before the general master may have established some cogent and legally cognizable reason to deny appellant’s prayer for attorney fees. However, this is another in a series of cases in which masters and the trial court which they serve have declined to follow Rule 1.490(f):
The evidence shall be taken in writing by the master or by some other person under his authority in his presence and shall be filed with his report .... [Emphasis added.]
Fortunately for appellant, and unfortunately for appellee, the report of the general master demonstrates clear error, apparent from the face of the report. Such is not always the case. Master’s proceedings contribute greatly to the administration of justice by providing expeditious resolutions of disputes, a task which is otherwise difficult in view of crowded court dockets. Nonetheless, all judicial proceedings must be capable of review. We fail to see how the interests of justice are served by a circuit court’s failure to require a record, a duty affirmatively placed upon it by our Supreme Court, pursuant to the rule making power conferred by Article V, Section 2(a) of the Florida Constitution.
The order of the trial court is reversed, and the cause remanded for an evidentiary hearing to determine and award a reasonable attorney fee to appellant for the services of her counsel in the proceedings in the trial court and in this appeal.
REVERSED and REMANDED.
LETTS, C.J., and HERSEY and DELL, JJ., concur.
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de Clements v. de Clements, 662 So. 2d 1276 (Fla. 3d DCA 1995)…re to provide the trial court with a record of the proceedings, when no such record existed. Obviously, a litigant cannot provide the Court with a document that does not exist. Petrakis, 597 So. 2d at 857-58 (emphasis added); see also Berk v. Berk, 423 So. 2d 1018, 1019 (Fla. 4th DCA 1982) (“Master’s proceedings contribute greatly to the administration of justice_ Nonetheless, all judicial proceedings must be capable of review. We fail to see how the interests of justice are served by a circuit court’s failur…
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KAY v. KAY, 430 So. 2d 532 (Fla. 4th DCA 1983)…y disagrees with a master’s conclusions, the judge should hear the objections before ruling thereon. Consequently, we do not believe the inclusion of the hearing requirement in Rule 1.490(h) was inadvertent.3 As this court indicated in Berk v. Berk, 423 So. 2d 1018 (4th DCA, 1982), adherence to Rule 1.490 procedures is required. Just as in Berk, where the filing of a transcript of the master’s hearing with the report was held to be mandatory, the hearing of exceptions by the court is mandatory. In view of the…
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Wyman v. Wyman, 430 So. 2d 610 (Fla. 4th DCA 1983)…n exceptions to master’s reports, we have recently held a hearing to be mandatory if requested by either party. Kay v. Kay, 430 So. 2d 532 (4th DCA 1983). Other portions of this rule have also been held to be mandatory. For example, in Berk v. Berk, 423 So. 2d 1018 (4th DCA 1982), we held that the filing of a transcript of the evidence with the master’s report pursuant to Florida Rule of Civil Procedure 1.490(f) was also mandatory. Although only a partial transcript of the evidence was filed with the master’s…
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