PETER SWARTZ, APPELLANT,
v.
FRANCENE A. SWARTZ, APPELLEE
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The Florida District Court of Appeal addresses whether it has jurisdiction to award temporary attorney's fees for defending an appeal in a dissolution of marriage case. The court holds that while the trial court retains jurisdiction to award such fees under amended Florida law, the appellate court itself lacks authority to do so.
The appellate court lacks jurisdiction to award temporary appellate attorney's fees in dissolution cases. The trial court retains continuing jurisdiction to award temporary attorney's fees and costs reasonably necessary to prosecute or defend an appeal under amended section 61.16, Florida Statutes, and the trial court is the proper forum for such motions.
[1] In dissolution of marriage actions, the trial court retains jurisdiction to award temporary attorney's fees and costs necessary to prosecute or defend an appeal.
[2] Statutory amendments and rule changes allow the trial court to award temporary appellate attorney's fees and costs in dissolution of marriage cases.
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Join FLexlaw to unlock all legal intelligence“The trial court shall have continuing jurisdiction to make temporary attorney's fees and costs awards reasonably necessary to prosecute or defend an appeal on the same basis and criteria as though the matter were pending before it at the trial level.”
Establishes that trial courts retain jurisdiction over temporary attorney's fees in appeals, not appellate courts.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellee wife Francene A. Swartz filed a motion in the appellate court seeking interim attorney's fees to defend against appellant husband Peter Swart…
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On Motion for Temporary Appellate Attorney’s Fees
COPE, Judge.
Appellee wife Francene A. Swartz has filed in this Court a motion for interim appellate attorney’s fees in order to defend the appeal of appellant husband Peter Swartz of interim orders entered in a dissolution of marriage action. We deny the motion without prejudice to the wife to refile this motion in the trial court.
As amended in 1994, section 61.16, Florida Statutes, provides in part:
61.16 Attorney’s fees, suit money, and costs.—
(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 ... appeals. _ The trial court shall have continuing jurisdiction to make temporary attorney’s fees and costs awards reasonably necessary to prosecute or defend an appeal on the same basis and criteria as though the matter were pending before it at the trial level.
§ 61.16(1), Fla.Stat. (1995) (emphasis added); see also eh. 94-169, § 1, Laws of Fla. Florida Rule of Appellate Procedure 9.600(c) has been amended to implement this change. The amended rule states, in pertinent part:
RULE 9.600 JURISDICTION OF LOWER TRIBUNAL PENDING REVIEW
(c) Dissolution of Marriage Actions. In dissolution of marriage actions, the lower tribunal shall retain jurisdiction to enter and enforce orders awarding ... temporary attorneys’ fees and costs reasonably necessary to prosecute or defend an appeal, or other awards necessary to protect the welfare and rights of any party pending appeal.... The receipt or payment of funds under an order awarding separate maintenance, child support, alimony, attorneys’ fees, or costs shall not prejudice the rights of any party.
Fla.R.App.P. 9.600(c) (1996) (emphasis added); see also 1994 Committee Note. The case relied on by the wife, Boyer v. Boyer, 588 So. 2d 615 (Fla. 5th DCA 1991), is no longer good law in light of the amendments to the statute and the rule.
We therefore deny the motion for temporary appellate attorney’s fees, without prejudice to the wife to refile the motion in the trial court.
Denied without prejudice.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Kasm v. Lynnel, 975 So. 2d 560 (Fla. 2d DCA 2008)…rary fees to prosecute or defend the appeal or for “final” fees once the appeal was concluded, had to be directed to the appellate court. See Boyer v. Boyer, 588 So. 2d 615 (Fla. 5th DCA 1991), overruled by statute as recognized in Swartz v. Swartz, 691 So. 2d 2 (Fla. 3d DCA 1996). In 1994, however, the legislature amended section 61.16(1), to provide: “The trial court shall have continuing jurisdiction to make temporary attorney’s fees and costs awards reasonably necessary to prosecute or defend an appeal…
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Sheri Smallwood, Chartered v. Perez, 735 So. 2d 490 (Fla. 3d DCA 1998)…ia as though the matter were pending before it at the trial level.” § 61.16(1), Fla. Stat. (1997) (emphasis added); see Fla. R.App. P. 9.600(c)(1); Amendments to Florida Rules of Appellate Procedure, 657 So. 2d 897, 898 (Fla.1995); Swartz v. Swartz, 691 So. 2d 2 (Fla. 3d DCA 1996); Padovano, supra, § 20.6, at 362. The wife’s motion for sanctions sought attorney’s fees for the just-concluded appeal, not temporary attorney’s fees. That being so, the trial court was without jurisdiction to consider it, and sh…
Authorities Cited
- Boyer v. Boyer, 588 So. 2d 615 (Fla. 5th DCA 1991)