JEFFREY MARC EISNER, APPELLANT,
v.
CYNTHIA MARKOVICH, APPELLEE

Fla. 3d DCA | 1991-07-09
Nos. 90-2851, 90-1858
Before NESBITT, BASKIN and JORGENSON, JJ.
585 So. 2d 312 Florida District Court of Appeal, Third District (1991) Positive Treatment
Cited by 3 cases

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Holding

The court held that a trial court cannot deny attorney's fees based solely on which party initiated a modification proceeding, especially when the master found fees were warranted and supported by evidence.


Headnotes

[1] A trial court errs by denying attorney's fees solely because the party seeking fees initiated the modification proceeding, when the statute permits fees for modification…

[2] A trial court is bound by a general master's factual findings if those findings are supported by competent substantial evidence.

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Facts & Procedural History

The former wife sought to relocate with the children to California, and a general master approved the move and modified visitation. The trial court de…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Jeffrey Eisner, the former husband, appeals an order approving the general master’s report. Cynthia Markovich, the former wife, appeals an order denying attorney’s fees.

We affirm the trial court’s order approving the general master’s report. The general master found that the former wife, who has primary residential custody of the children, should be permitted to move to California with the children and that the former husband’s visitation rights should be modified. The general master applied the test set forth in Hill v. Hill, 548 So. 2d 705 (Fla. 3d DCA 1989), review denied, 560 So. 2d 233 (Fla.1990), and recommended modification of the final judgment. See Sherman v. Sherman, 558 So. 2d 149 (Fla. 3d DCA 1990); Matilla v. Matilla, 474 So. 2d 306 (Fla. 3d DCA 1985).

The general master found that the former wife’s remarriage and move to California will enable the children to live in a family setting; that the former wife’s motives are not vindictive; that she will comply with the former husband’s visitation rights; that the children’s bond with their father will remain strong under the substitute visitation arrangements; and that the former husband is able to pay the transportation costs. Because the master’s findings are supported by competent substantial evidence, the trial court correctly overruled the former husband’s exceptions and approved the general master’s report. Bragassa v. Bragassa, 505 So. 2d 556 (Fla. 3d DCA 1987).

We reverse the order denying the former wife attorney’s fees. The referral to the general master included the former wife’s request for attorney’s fees, and the general master found that she was entitled to an attorney’s fee award. However, the trial court ignored the general master’s finding1 and did not award fees because the former wife had initiated the modification proceeding. The order denying fees states that the court agrees with the former husband’s contention “that the Former Wife should bear her own attorney’s fee because the attorney’s services were required solely by reason of the proceeding which was brought by the Former Wife so that she could locate to California, with the parties’ minor children, in order to remarry.” The court’s ruling is contrary to law.

Section 61.16, Florida Statutes (1989), permits the award of attorney’s fees “after considering the financial resources of both parties ... to the other party maintaining or defending any proceeding under this chapter including enforcement and modification proceedings.” Creel v. Creel, 568 So. 2d 942 (Fla. 3d DCA 1990); Zakarin v. Zakarin, 565 So. 2d 790 (Fla. 3d DCA 1990); see Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 835 (Fla.1990).

The court must also determine “whether the modification ... action brought ... by the party seeking fees was meritorious or was litigated in good faith and whether the actions of one party compelled the other party to resort to the courts for a remedy.” Meloan v. Coverdale, 525 So. 2d 935 (Fla. 3d DCA), review denied, 536 So. 2d 243 (Fla.1988); Thornton v. Byrnes, 537 So. 2d 1088 (Fla. 3d DCA 1989); see Elenewski v. Elenewski, 528 So. 2d 1354 (Fla. 3d DCA 1988); Goldman v. Smargon, 524 So. 2d 479 (Fla. 3d DCA 1988).

Here, there is no contention that the former wife’s modification petition was without merit or litigated in bad faith. “Once a trial court decides to appoint a master to hear testimony and make findings of fact, it loses the prerogative of substituting its judgment for that of the master’s. The court is thereafter bound by the master’s factual findings if they are supported by competent evidence.” Bragassa, 505 So. 2d at 558 (citations omitted).

Here, the master’s finding is supported by substantial competent evidence. Goldfarb v. Agran, 546 So. 2d 24 (Fla. 3d DCA 1989); see Zakarin. The former husband earns a substantial income as an oral surgeon; the former wife cares for two young children and does not work outside the home.2 The trial court abused its discretion in failing to approve the general master’s finding and denying fees solely because the former wife initiated the modification proceeding.

Accordingly, we reverse the denial of attorney’s fees and remand for proceedings consistent with this opinion.

Affirmed in part; reversed in part.

ON MOTION FOR CLARIFICATION

Upon consideration, Cynthia Markovich’s motion for clarification is granted and the order of July 9, 1991 is corrected to grant and remand Cynthia Markovich’s request for attorney’s fees. Nesbitt, Baskin and Jorgenson, JJ., concur. . In 1989, the court entered a final judgment of dissolution awarding the former wife $2,500 a month alimony for three years; that award terminates upon her remarriage.


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Cited By

  • Doram Tamari v. Turko-Tamari, 599 So. 2d 680 (Fla. 3d DCA 1992)
    …ore does not affect the status quo insofar as it requires a continuation of this separation. As a consequence, the child visitation rights of the husband were not, in our view, substantially affected by permitting this move. See Eisner v. Markovich, 585 So. 2d 312 (Fla. 3d DCA 1991); Sherman v. Sherman, 558 So. 2d 149, 151 (Fla. 3d DCA 1990); Matilla v. Matilla, 474 So. 2d 306, 307 (Fla. 3d DCA 1985). There are, however, two aspects of the order under review which must be reversed. The first is ministerial i…
  • Pyszka v. Mullin, 602 So. 2d 956 (Fla. 3d DCA 1992)
    …at the wife engaged in baseless litigation and incurred unnecessary expense in seeking discovery to determine her husband’s interest in the law firm or in complying with this court’s order to file a response to the petition. See Eisner v. Markovich, 585 So. 2d 312 (Fla. 3d DCA 1991); Elenewski v. Elenewski, 528 So. 2d 1354 (Fla. 3d DCA 1988); Meloan v. Coverdale, 525 So. 2d 935 (Fla. 3d DCA 1988); Sutter v. Sutter, 578 So. 2d 788 (Fla. 4th DCA 1991) and cited cases. Accordingly, we deny the husband’s motion…
  • Hope v. State, 588 So. 2d 255 (Fla. 5th DCA 1991)
    …ate, 548 So. 2d 1108 (Fla.1989). AFFIRMED in part; REVERSED in part and REMANDED for correction of judgment consistent with this opinion. GRIFFIN, J., concurs specially with opinion. COWART, J., dissents with opinion. . But see, Catete v. State, 585 So. 2d 312 (Fla. 2d DCA 1991), reh. pending. . Since the Rodriguez court did not specifically recede from the Phillips "four corners of the charging document" analysis, it is unclear whether in fact the prior conviction must be pleaded in the charging documen…

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