JACK P. KOTLARZ
v.
WENDY W. KOTLARZ
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The appellate court reversed an award of attorney's fees to a former wife for her efforts to collect an equitable distribution payment. The court found that Chapter 61 of the Florida Statutes, which allows for attorney's fees in dissolution proceedings, does not cover the enforcement of general money judgments.
No, attorney's fees and costs are not authorized under section 61.16 for the collection of a general money judgment awarded as equitable distribution. Chapter 61 only provides for attorney's fees in proceedings related to alimony or child support.
[1] Attorney's fees under section 61.16, Florida Statutes, are not available for collection efforts on equitable distribution awards because such collection proceedings are n…
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Join FLexlaw to unlock all legal intelligence“While we empathize with the trial court’s frustration in attempting to get the former husband to comply with its orders over the last ten years, we are compelled to reverse because the Legislature has not authorized attorney’s fees and costs for the former wife’s collection efforts.”
This quote explains the court's decision to reverse the award of attorney's fees, emphasizing the lack of legislative authorization for such fees in this context.
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Join FLexlaw to unlock all legal intelligenceIn a 2008 dissolution judgment, the former husband was ordered to pay the former wife an equalizing payment. The husband failed to pay, and the wife i…
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ROBERTS, J.
The former husband appeals an award of attorney’s fees and costs granted to the former wife in association with her extraordinary efforts to collect the money owed to her by the former husband. On appeal, the former husband argues that the trial court erred in granting the former wife attorney’s fees and costs pursuant to Chapter 61, Florida Statutes. We agree and reverse. In the final judgment of dissolution of marriage, which was issued in 2008, the trial court ordered the former husband to pay the former wife an equalizing payment as part of the equitable distribution plan. In 2009, the trial court awarded the former wife
a money judgment. To this day, the former husband has not paid the equalizing payment. In 2015, in order to collect on the money judgment, the former wife began to pursue writs of garnishment and proceedings supplementary to obtain a writ of execution. Having had little success in collecting any money to satisfy her money judgment and needing additional funds in order to continue her collection efforts, the former wife requested an award of attorney’s fees and costs. The former wife argued that she is entitled to attorney’s fees and costs pursuant to Chapter 61. The trial court agreed and awarded the former wife attorney’s fees and costs pursuant to section 61.16, Florida Statutes. Whether attorney’s fees and costs are authorized under section 61.16 for the former wife’s collection efforts is a legal question subject to de novo review. See Mathers v. Brown, 21 So. 3d 834, 837-38 (Fla. 4th DCA 2009) (when the matter on appeal only concerns an issue of law, the de novo standard of review applies). When the former wife received a money judgment, she became a judgment creditor and was subject to the same remedies available to any other judgment creditor. See DeSantis v. DeSantis, 714 So. 2d 637, 638 (Fla. 4th DCA 1998) (equitable distribution awards may only be enforced through the usual remedies available to a creditor against his debtor). Chapter 61 does not provide remedies for judgment creditors. Section 61.16(1) states, in relevant part: (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. . . . (Emphasis added.) Chapter 61 provides for a writ of garnishment under the chapter only for the enforcement of alimony or child support. §
61.12, Fla. Stat. The original equalizing payment owed to the former wife was not for alimony or child support. Therefore, her pursuit of a writ of garnishment was not a proceeding under Chapter 61. Likewise, Chapter 61 does not provide for proceedings supplementary to obtain a writ of execution. Therefore, her efforts toward obtaining a writ of execution were not proceedings under Chapter 61. While we empathize with the trial court’s frustration in attempting to get the former husband to comply with its orders over the last ten years, we are compelled to reverse because the Legislature has not authorized attorney’s fees and costs for the former wife’s collection efforts. REVERSED. ROWE, J., concurs; WOLF, J., concurs with opinion.