STATE OF FLORIDA, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES AND MARGUITA THOMPSON, APPELLANTS,
v.
RICHARD THOMPSON, APPELLEE
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The court reversed an award of attorney's fees against the Department of Health and Rehabilitative Services in a child support enforcement case. HRS initiated a contempt proceeding against the obligor for unpaid child support, and although a trial court found HRS's motion frivolous and awarded fees to the obligor, the appellate court held that the contempt motion was not clearly devoid of merit when initiated.
The court reversed the award of attorney's fees, holding that the contempt motion was not so clearly devoid of merit both on the facts and the law as to be completely untenable when it was initiated. HRS had proper standing to enforce the support order and the right to rely on clerk's office records showing an arrearage at the time the motion was filed.
[1] A party seeking attorney's fees under section 57.105, Florida Statutes, must demonstrate that the opposing party's action was so clearly devoid of merit, both on the fact…
[2] An action that is not frivolous when initiated cannot support an award of attorney's fees under section 57.105, Florida Statutes, even if it later becomes frivolous.
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Join FLexlaw to unlock all legal intelligence“Attorney's fees may only be awarded pursuant to section 57.105, Florida Statutes, when the action is so clearly devoid of merit both on the facts and the law as to be completely untenable.”
Establishes the stringent legal standard for awarding attorney's fees under section 57.105
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Join FLexlaw to unlock all legal intelligenceRichard and Marguita Thompson were divorced in 1984. In February 1988, Marguita began receiving public assistance for their minor child. HRS and Margu…
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PATTERSON, Judge.
This is an appeal from an order assessing attorney’s fees against the Department of Health and Rehabilitative Services (HRS) pursuant to section 57.105, Florida Statutes (1987). We reverse.
Richard and Marguita Thompson were divorced in Pinellas County in 1984. In February 1988 Marguita began to receive public assistance payments for the parties’ minor child. She then joined with HRS in a petition for support which resulted in an order dated July 7, 1988, requiring Richard to pay child support of $17.50 per week through the office of the clerk of circuit court. This order was accompanied by an income deduction order directed to Richard’s employer. Richard’s employer failed to honor the income deduction order, and as of September 30, 1988, an arrearage of $297.50 had accumulated. HRS then initiated a contempt proceeding against Richard. On October 20, 1988, in response to the motion for contempt, Richard paid $232.30 to the office of the clerk, believing that to be the correct amount of the arrearage. HRS declined to withdraw its motion for contempt and the matter was heard before the court on November 30, 1988.
That proceeding resulted in an order which, in pertinent part, found an arrear-age of $17.50 and otherwise denied the HRS motion. Richard then brought a motion for attorney’s fees pursuant to section 57.105, Florida Statutes, asserting that the HRS contempt motion was frivolous and not prosecuted in good faith. On February 6, 1989, the trial court granted the motion and reserved the amount of the fee for determination at a future hearing. This appeal followed.
Almost all of the fees and costs Richard incurred were attributable to proceedings that followed his October 20, 1988, payment to the clerk. In this regard the equities of the matter may lie in his favor. However, the law does not. HRS had proper standing to enforce the order of July 7, 1988. Lamm v. Chapman, 413 So. 2d 749 (Fla.1982). On the date of the motion for contempt, the records of the office of the clerk showed Richard in arrears. HRS had the right to rely on those records.
The fact that the default resulted from Richard’s employer’s failure to honor the income deduction order is of no consequence. It is Richard and not his employer to whom the July 7, 1988, support order is directed. Although an employer’s noncompliance may provide mitigating circumstances which preclude incarceration, the entry of an income deduction order does not affect the obligor’s responsibility to see that court-ordered support payments are timely made. This is particularly true in the case of Richard, who must be presumed to have known that the payments were not being withheld over a substantial period of time.
Attorney’s fees may only be awarded pursuant to section 57.105, Florida Statutes, when the action is so clearly devoid of merit both on the facts and the law as to be completely untenable. Brinson v. Creative Aluminum Products, Inc., 519 So. 2d 59 (Fla. 2d DCA 1988). If an action is not frivolous when it is initiated, then the fact that it later becomes frivolous will not support an award of fees. Marexcelso Compania Naviera v. Fla. Nat’l Bank, 533 So. 2d 805 (Fla. 4th DCA 1988).
Reversed.
HALL, A.C.J., and THREADGILL, J., concur.
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Huie v. Dent & Cook, P.A., 635 So. 2d 111 (Fla. 2d DCA 1994)…s a general rule, an award of fees against a plaintiff under section 57.105, Florida Statutes (1991), is not authorized unless the plaintiffs action was frivolous at its inception. See State, Department of Health & Rehabilitative Servs. v. Thompson, 552 So. 2d 318 (Fla. 2d DCA 1989). We have recog nized, in dicta, the possibility that the circumstances of a particular case might justify an exception to this general rule and permit the type of award entered by the trial court. See Wall v. Department of Transp.…1 / 2
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Rogers v. Cooper, 575 So. 2d 266 (Fla. 1st DCA 1991)…tute addressing attorney’s fees and costs in paternity actions, Section 742.031, Florida Statutes, made no provision for the award of attorney’s fees to a defendant in a paternity action. State, Dep’t of Health and Rehabilitative Servs. v. Thompson, 552 So. 2d 318 (Fla. 2d DCA 1989), was a Chapter 61 child support enforcement proceeding in.which the defendant prevailed and was awarded attorney’s fees, not under Chapter 61, but pursuant to Section 57.105, Florida Statutes. In reversing the award of attorney’s…
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Solimando v. Aloha Med. Ctr. & William J. Young, M.D., 594 So. 2d 850 (Fla. 2d DCA 1992)…inappropriate. Even though events may develop during the course of a lawsuit indicating that the suit is frivolous, this does not give rise to an award of fees pursuant to section 57.105. Department of Health and Rehabilitative Services v. Thompson, 552 So. 2d 318 (Fla. 2d DCA 1989). It is apparent that the judge had heard other evidence indicating that the respondents were not negligent. There is no such evidence in the record before us, nor was any identified by the court at the hearing. There is no indicat…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lamm v. Chapman, 413 So. 2d 749 (Fla. 1982)
- Hilde W. Brinson v. Creative Aluminum Prods., Inc., 519 So. 2d 59 (Fla. 2d DCA 1988)
- Marexcelso Compania Naviera, S.A. v. Fla. Nat'l Bank, 533 So. 2d 805 (Fla. 4th DCA 1988)