ETHLYN RITA GARCIA, APPELLANT,
v.
RAUL ANTONIO GARCIA, APPELLEE
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In this family law appeal, the court reversed a trial court's order that awarded the wife only half of her requested attorney's fees in a dissolution action. The court held that the trial court failed to follow the required Rowe framework for calculating attorney's fees and improperly split the fee obligation despite the husband's superior financial ability to pay.
The trial court erred in awarding only half of the attorney's fees because it failed to set forth specific findings required by Rowe (hourly rate, hours expended, and reduction/enhancement factors) and because the husband's superior financial ability required him to pay the full amount. The trial court properly denied fees for the prior appeal because the wife failed to file a motion for attorney's fees pursuant to appellate rules and no appellate court mandate authorized such an award.
[1] A trial court must make specific findings regarding hourly rate, hours reasonably expended, and appropriateness of enhancement or reduction factors when determining attor…
[2] Enhancement of attorney's fees based on the consumer price index is not permitted under Florida law.
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Join FLexlaw to unlock all legal intelligence“Rowe mandates the trial court, in determining the proper amount of attorney's fees, to set forth specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of the reduction or enhancement factors.”
Establishes the mandatory framework for calculating attorney's fees that the trial court failed to follow
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Join FLexlaw to unlock all legal intelligenceIn a dissolution of marriage action, the trial court initially denied the wife's motion for attorney's fees. On remand from a prior appeal, the trial …
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PER CURIAM.
Appellant, Ethlyn Rita Garcia, wife, appeals a post-judgment order awarding her a portion of the attorney’s fees she sought in the underlying dissolution action. We reverse and remand.
This is the second appearance of this case before this court. In the first case we held the trial court erred in denying the wife’s motion for attorney’s fees, and we reversed and remanded the cause for further proceedings on the wife’s motion. Garcia v. Garcia, 534 So. 2d 1211 (Fla. 3rd DCA 1988). On remand, the trial court held several hearings on the wife’s motion for attorney’s fees. The trial court determined that $4,500 was the proper fee for the services rendered by the wife’s attorneys and subsequently entered an order directing the husband to pay such amount. Thereafter, the husband moved to vacate the order awarding $4,500 against him. The trial court granted the husband’s motion to vacate and entered an order assessing fees against the husband for one-half of $4,500, that is, $2,250. This appeal followed.
The wife raises two primary contentions on appeal. First, she argues the trial court erred in failing to award attorney’s fees in accordance with the requirements of Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985). We agree.
Rowe mandates the trial court, in determining the proper amount of attorney’s fees, to set forth specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of the reduction or enhancement factors. Frechter v. Freckter, 548 So. 2d 712 (Fla. 3d DCA 1989); Lanham v. Lanham, 528 So. 2d 80 (Fla. 2d DCA 1988). In this case, the trial court erred in failing to set forth its specific findings.
In ruling the trial court failed to follow the dictates of Rowe, 472 So. 2d at 1151, we reject the wife’s assertion that the amount of attorney’s fees awarded should be enhanced for delay based on the federal “consumer price index.” No language in Rowe or its progeny provides for enhancement on such basis.
Further, we reject the wife’s claim that her attorney’s fees should be enhanced based on the lode star multiplier. The Florida Supreme Court has held that multipliers should not be employed in domestic relations cases absent rare and extraordinary circumstances. Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla.1990); Pirino v. Pirino, 558 So. 2d 171 (Fla. 5th DCA 1990); Faust v. Faust, 553 So. 2d 1275 (Fla. 1st DCA 1989). The wife has not demonstrated such rare and extraordinary circumstances were present in this case.
In addition to our ruling that the trial court erred in failing to set forth its specific findings, we conclude the trial court erred in requiring the husband to pay only half of the wife’s attorney’s fees. The evidence before the court was that the husband had an average monthly income of over $1,600 and over $50,000 in assets, while the wife had an average monthly income of approximately $440 and no assets. Since the husband had the superior financial ability to pay the fees, it was error for the trial court to assess the husband for only half of such fees. See Kuse v. Kuse, 533 So. 2d 828 (Fla. 3d DCA 1988); § 61.16, Fla.Stat. (1989).
Second, the wife contends the trial court erred in failing to award her attorney's fees for services rendered in the previous appeal of this action. We do not agree.
In the prior appeal, the wife made no motion for attorney’s fees in accordance with rule 9.400(b), Florida Rules of Appellate Procedure, and this court did not authorize an award of attorney’s fees for such appeal.
The failure to file a motion for attorney’s fees in accordance with rule 9.400(b), Florida Rules of Appellate Procedure, is a proper basis for the denial of attorney’s fees. Salley v. City of St. Petersburg, 511 So. 2d 975 (Fla.1987). Further, a trial court may not award appellate attorney’s fees absent a mandate from the appellate court. Real Estate Apartments, Ltd. v. Bayshore Garden Apartments, Ltd., 530 So. 2d 977 (Fla. 2d DCA 1988); Gieseke v. Gieseke, 499 So. 2d 839 (Fla. 4th DCA 1986). The trial court, therefore, properly refused to allow the wife the attorney’s fees for the prior appeal.
Accordingly, the order under review is reversed and remanded for further proceedings consistent with this opinion.
Reversed and remanded.
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SOL v. SOL, 656 So. 2d 206 (Fla. 3d DCA 1995)…ge disparity in income between the payor and payee spouse. See Leonard v. Leonard, 613 So. 2d 1339 (Fla. 3d DCA 1993); Lozano-Ciccia v. Lozano, 599 So. 2d 718 (Fla. 3d DCA 1992); LaHuis v. LaHuis, 590 So. 2d 557 (Fla. 3d DCA 1991); Garcia v. Garcia, 570 So. 2d 357 (Fla. 3d DCA 1990); Zakarin v. Zakarin, 565 So. 2d 790 (Fla. 3d DCA 1990); Kuse v. Kuse, 533 So. 2d 828 (Fla. 3d DCA 1988); Heller v. Kuvin, 490 So. 2d 245 (Fla. 3d DCA 1986). Indeed, in a number of cases the payee spouse had no earning ability at a…
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In re the Marriage of Edward N. Claughton, Jr. v. Claughton, 625 So. 2d 853 (Fla. 3d DCA 1993)…$250,000. Absent “rare and extraordinary cases with truly special circumstances,” an enhancement or multiplier should not be granted in domestic relations cases. Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 835 (Fla.1990); Garcia v. Garcia, 570 So. 2d 357 (Fla. 3d DCA 1990). Our research has revealed no case in Florida where an enhancement or multiplier was properly awarded in a dissolution proceeding. See e.g., Siegel v. Siegel, 564 So. 2d 226, 229 (Fla. 5th DCA 1990) (award of multiplier error in d…
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Bird Lakes Dev. Corp. v. Homero Meruelo, 626 So. 2d 239 (Fla. 3d DCA 1993)…PER CURIAM. Because a trial court may not award appellate attorney’s fees absent a mandate from the appellate court, Garcia v. Garcia, 570 So. 2d 357 (Fla. 3d DCA1990), we reverse the trial court’s award of appellate attorney’s fees to appellee Gesyl’s attorney. Finding no merit in appellant’s other contentions, we affirm the judgment for attorney’s fees in all other respects. Affirmed in part,…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990)
- Kuse v. Kuse, 533 So. 2d 828 (Fla. 3d DCA 1988)
- Gieseke v. Haydee Gieseke, 499 So. 2d 839 (Fla. 4th DCA 1986)
- Lanham v. Lanham, 528 So. 2d 80 (Fla. 2d DCA 1988)
- Salley v. City OF ST. Petersburg, 511 So. 2d 975 (Fla. 1987)
- Frechter v. Frechter, 548 So. 2d 712 (Fla. 3d DCA 1989)
- Real Est. Apts., Ltd. v. Bayshore Garden Apts., Ltd., 530 So. 2d 977 (Fla. 2d DCA 1988)
- Faust v. Frederic L. Faust, 553 So. 2d 1275 (Fla. 1st DCA 1989)
- Pirino v. Pirino, 558 So. 2d 171 (Fla. 5th DCA 1990)