ELIZABETH DUNN CISNEROS, APPELLANT,
v.
OSCAR HECTOR CISNEROS, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In a dissolution of marriage appeal, the Florida Third District Court of Appeal reversed the trial court's award of a special equity in the wife's non-marital property to the husband and the award of attorney's fees under section 57.105, while affirming the award of attorney's fees under section 61.16 and the award of primary custody to the husband.
The court reversed the special equity award because the husband's labor contribution during the marriage constitutes marital appreciation under section 61.075(5)(a)(2), not a special equity, which can only arise from contributions unconnected with the marital relationship. The court also reversed the attorney's fees awards under section 57.105 because the trial court lacked jurisdiction to award appellate attorney's fees without a motion in the appellate court, and lacked jurisdiction to award trial-level attorney's fees for the domestic violence proceeding under that statute.
[1] A trial court lacks jurisdiction to award appellate attorney's fees when no motion for such fees has been made in the appellate court.
[2] A trial court lacks jurisdiction to award trial-level attorney's fees pursuant to section 57.105, Florida Statutes, for a domestic violence proceeding.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Marital appreciation of separately owned assets is subject to equitable distribution if either spouse expended marital labor on that asset”
Establishes that the husband's labor contributions during marriage create marital appreciation subject to distribution, not a special equity
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceElizabeth Dunn Cisneros appealed a final judgment of dissolution of marriage. The husband devoted labor to the wife's separate property, allegedly sav…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Jurisdiction To Award Attorney'S Fees cases and more on FLexlaw
PER CURIAM.
We grant the Appellee’s motion for rehearing, withdraw our opinion of September 25, 2002, and substitute the following:
Elizabeth Dunn Cisneros, wife, appeals the trial court’s final judgment of dissolution of marriage. She raises four issues in this appeal. We reverse the lower court’s award of a special equity in the marital residence to the husband, as well as the award of trial and appellate attorney’s fees to the husband pursuant to section 57.105, Florida Statutes (2001), for his successful litigation and appeal of the domestic violence injunction issued by the trial court in this case.
As concerns the appellate attorney’s fees, because no motion for attorney’s fees was made in this court, the trial court was without jurisdiction to award the same. See Rados v. Rados, 791 So. 2d 1130, 1131 (Fla. 2d DCA 2001). This is true even when such fees are sought pursuant to section 57.105, Florida Statutes (2001). See Alvarez, Armas & Borron v. Heitman, 770 So. 2d 208, 210 (Fla. 3d DCA 2000). The trial court was also without jurisdiction to award trial level attorneys fees pursuant to section 57.105, Florida Statutes for the domestic violence proceeding. See Abraham v. Abraham, 700 So. 2d 421, 422 (Fla. 3d DCA 1997); Lewis v. Lewis, 689 So. 2d 1271 (Fla. 1st DCA 1997).
The final judgment awards the husband a special equity in the wife’s non- marital real property because the husband devoted his labor to the wife’s separate property. The reasoning behind this award presumes to be that his labors saved the parties $150,000.00, in the costs of construction. We conclude that this award was contrary to the provisions of section 61.075(5)(a)(2), Florida Statutes (2001), which defines this as marital appreciation. The trial court properly awarded the husband $35,000.00 as equitabla distribution of the active appreciation of the wife’s property. See Webb v. Webb, 636 So. 2d 883 (Fla. 3d DCA 1994)(“Marital appreciation of separately owned assets is subject to equitable distribution if either spouse expended marital labor on that asset... .”); Heinrich v. Heinrich, 609 So. 2d 94 (Fla. 3d DCA 1992)(appreciation of non-marital assets resulting from efforts by either party renders the appreciation a marital asset). Moreover, a special equity can arise only where one spouse’s contribution to the other’s property was from a source unconnected with the marital relationship. See White v. White, 820 So. 2d 432 (Fla. 4th DCA 2002). In the present case, the husband’s contribution to the wife’s property was his labor, and was performed during the marriage. As such it cannot give rise to a special equity. Accordingly, we strike the special equity award from the final judgment.
Finding no abuse of discretion, we affirm both the award of attorneys fees under section 61.16, Florida Statutes (2001), and the award of primary custody of the parties minor children to the husband. See Flint v. Fortson, 744 So. 2d 1217 (Fla. 4th DCA 1999); see also Cole Taylor Bank v. Shannon, 772 So. 2d 546 (Fla. 1st DCA 2000).
Affirmed in part; reversed in part.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Lopez v. Hall, 233 So. 3d 451 (Fla. 2018)…rst District Court of Appeal in Hall v. Lopez, 213 So. 3d 1003 (Fla. 1st DCA 2017), which certified direct conflict with the Third District Court of Appeal’s decisions in Ratigan v. Stone, 947 So. 2d 607 (Fla. 3d DCA 2007), and Cisneros v. Cisneros, 831 So. 2d 257 (Fla. 3d DCA 2002), and with the Fifth District Court of Appeal’s decision in Dudley v. Schmidt, 963 So. 2d 297 (Fla. 5th DCA 2007), regarding whether an award of attorney’s fees pursuant to section 57.105, Florida Statutes (2013), is permissible in…
-
Hall v. Lopez, 213 So. 3d 1003 (Fla. 1st DCA 2016)…court reasoned as follows: Section 57.105 attorney’s fees may be awarded as a sanction in a variety of types of actions.... Such fees may not, however, be awarded in an action for an injunction for protection against violence. Cisneros v. Cisneros, 831 So. 2d 257 (Fla. 3d DCA 2002) (“The trial court was also without jurisdiction to award trial level attorney’s fees pursuant to section 57.105, Florida Statutes, for the domestic violence [injunction] proceeding.”) In support of that proposition, the Cisneros c…1 / 2
-
Dudley v. Schmidt, 963 So. 2d 297 (Fla. 5th DCA 2007)…ere is no statutory authority to award fees as sanctions in such case); Geiger v. Schrader, 926 So. 2d 432, 433 (Fla. 1st DCA 2006) (holding there is no provision for an award of attorney’s fees in a section 741.30 proceeding); Cisneros v. Cisneros, 831 So. 2d 257, 258 (Fla. 3d DCA 2002) (holding trial court was without jurisdiction to award trial level attorney’s fees pursuant to section 57.105 for domestic violence proceeding). AFFIRMED. PALMER, C.J., and MONACO, J., concur.…
Authorities Cited
- Rados v. Rados, 791 So. 2d 1130 (Fla. 2d DCA 2001)
- Flint v. Fortson, 744 So. 2d 1217 (Fla. 4th DCA 1999)
- Lewis v. Lewis, 689 So. 2d 1271 (Fla. 1st DCA 1997)
- Cole Taylor Bank v. Shannon, 772 So. 2d 546 (Fla. 1st DCA 2000)
- Heinrich v. Heinrich, 609 So. 2d 94 (Fla. 3d DCA 1992)
- Cruchley v. The Funding Grp., Inc., 820 So. 2d 432 (Fla. 4th DCA 2002)
- Barth Satuloff v. Am. Reliance Ins. Co., 700 So. 2d 421 (Fla. 3d DCA 1997)
- Abraham v. Sherrie Lleo Abraham, 700 So. 2d 421 (Fla. 3d DCA 1997)
- Wilbon v. State, 636 So. 2d 883 (Fla. 3d DCA 1994)
- Alvarez, Armas & Borron, P.A. v. Heitman, 770 So. 2d 208 (Fla. 3d DCA 2000)