DANA LEVINSON, APPELLANT,
v.
PAMELA LEVINSON, APPELLEE

Fla. 4th DCA | 2004-12-22
No. 4D03-2685
WARNER and MAY, JJ., concur.
895 So. 2d 432 Florida District Court of Appeal, Fourth District (2004) Positive Treatment
Cited by 4 cases

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Synopsis

The appellate court reversed a trial court's order for temporary child support and attorney's fees, finding that the trial court erred by awarding temporary child support while a modification petition was pending and that the awarded fees were excessive and improperly secured. The court emphasized the doctrine of law of the case and the need for specific findings to support such awards.


Holding

The court held that it was error to order temporary child support while a modification petition was pending, that the award of $110,000 in temporary attorney's fees was an abuse of discretion, and that prohibiting the former husband from encumbering his property to secure the fee award was beyond the trial court's authority.


Headnotes

[1] A trial court errs in ordering temporary child support while a petition for modification is pending, as the final judgment of dissolution remains the law of the case unti…

[2] A trial court abuses its discretion by awarding excessive temporary attorney's fees and costs without making specific findings to support the reasonableness of the award.

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Key Quotes

“As to the first issue, we hold that'it was error for the trial court to order the former- husband to pay temporary child support while the former wife’s petition for modification was pending.”

Establishes the court's holding on the first issue regarding temporary child support.

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Facts & Procedural History

Following a dissolution of marriage, the former wife filed a petition to modify child support and visitation. She also sought temporary child support …

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Opinion of the Court
SHAHOOD, J.

SHAHOOD, J.

In 1998, the marriage of the parties was dissolved. Among other things, their set tlement agreement addressed child support and visitation involving the parties’ three minor children.

In 2002, the former wife filed a petition to modify the final judgment to increase the former husband’s child support obligation and to decrease the former husband’s visitation. Simultaneously, she filed a motion for temporary fees and, some months later, filed a Motion for Temporary Child Support. In the temporary support motion, the former wife asserted that there was a need based on the delays in the proceedings.

Following a hearing at which evidence concerning the parties’ incomes was introduced to a general master, the master entered a Report of the Hearing Officer recommending that the former wife’s motion for temporary child support be granted and that the former husband be ordered to pay monthly child support of $3,000, an amount which was twice what he was previously paying. In addition, the general master recommended that the obligation be retroactive to the date the former wife filed her motion.1 The general master’s recommendation was approved and adopted by order of the trial court. Thereafter, the former husband filed an objection to the general master’s report as well as a motion to vacate the order of the general master. The court denied the former husband’s motion to vacate, and granted the former wife’s motion for temporary attorney’s fees, awarding her the sum of $100,000.

The trial court entered an Order and Final Judgment directing the former husband to pay the former wife’s fees and costs in the amount of $110,000, and also prohibiting the former husband from encumbering his house except to pay fees and costs. At the same time, the trial court entered a second order denying the former' husband’s motion to vacate and directing him to immediately pay the back child support. These orders are the subject of this appeal.

As to the first issue, we hold that'it was error for the trial court to order the former-husband to pay temporary child support while the former wife’s petition for modification was pending. In Robbie v. Robbie, 726 So. 2d 817 (Fla. 4th DCA 1999), we reversed an award of temporary alimony based on the doctrine of law of the case. That same principle applies in this case. In the parties’ settlement agreement, which was incorporated into the final judgment of dissolution, matters concerning child support were addressed and resolved. Modification of those terms required a hearing and specific findings by the trial court. Until such time, the. final judgment of dissolution was the law of the case and the parties were bound by that judgment. Id. at 820. See also Saulnier v. Saulnier, 425 So. 2d 558 (Fla. 4th DCA 1982). We are aware that Robbie and Saulnier both dealt with alimony modification and not child support modification, but determine that that distinction is not significant.

Next, we hold that the trial court abused its discretion in ordering the former husband to pay the former wife’s temporary fees and costs in the amount of $110,000. This appears to have been a fairly uncomplicated modification of child support action. Although the former wife claims the excessive fees were the result of the former husband’s litigious conduct, the trial court did not make such a finding. In fact, the trial court did not make any findings to support the conclusion that such fees, which we consider to be excessive, were reasonable. See generally Carlson v. Carlson, 639 So. 2d 1094 (Fla. 4th DCA 1994) (reversing excessive fee award in single-issue, uncomplicated modification proceeding where trial court failed to make appropriate findings).

Finally, we hold that the trial court erred in prohibiting the former husband from encumbering his property in order to secure payment of the former wife’s attorney’s fees. As we stated in Widom v. Widom, 679 So. 2d 74 (Fla. 4th DCA 1996), this prohibition is tantamount to an injunction to secure a fee award, which is beyond the trial court’s authority.

Accordingly, we reverse the Order and Final Judgment and remand for the trial court to excise that portion prohibiting the former husband from encumbering his property. We also reverse the order awarding temporary fees and the order on former husband’s motion to vacate and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WARNER and MAY, JJ., concur. . Based on the order, it was determined that the amount of back support owed was $19,500.


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Citator

Cited By

  • …it was not for the purpose of protecting her counsels’ attorneys’ fees. Indeed the court did not have the authority to freeze her assets in order to pay her own attorneys. Rinkor v. Brborich, 957 So. 2d 661 (Fla. 3d DCA 2007); Levinson v. Levinson, 895 So. 2d 432 (Fla. 4th DCA 2004); Widom v. Widom, 679 So. 2d 74 (Fla. 4th DCA 1996). Nor, as appellant points out, can the contempt power of a court be invoked for the “settlement of property rights as opposed to alimony, support or maintenance of one to whom th…
  • Rinkor v. Leyla Brborich, 957 So. 2d 661 (Fla. 3d DCA 2007)
    …Section 61.11(1) makes no mention of attorney’s fees. The Fourth District Court of Appeal has at least twice determined that section 61.11 does not empower a trial court to enter an injunction to secure an attorney’s fee award. Levinson v. Levinson, 895 So. 2d 432 (Fla. 4th DCA 2004); Widom v. Widom, 679 So. 2d 74 (Fla. 4th DCA 1996). We agree with the Fourth District. We recognize that in Carta v. Carta, 903 So. 2d 300 (Fla. 3d DCA 2005), the trial, court had issued an injunction freezing assets in the husb…

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