THOMAS J. GIOVANINI, APPELLANT,
v.
DONNA L. GIOVANINI, 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.
The trial court erred in awarding temporary appellate attorney's fees without conducting an evidentiary hearing, as required by statute and due process.
[1] A trial court's award of attorney's fees is reviewed for an abuse of discretion.
[2] An award of attorney's fees pursuant to section 61.16, Florida Statutes, must be based on the need of the party seeking the fees and the ability of the other party to pay…
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 intelligenceThe Former Husband appealed orders denying his motions and an award of temporary appellate attorney's fees to the Former Wife. The trial court granted…
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 Ability To Pay Attorney'S Fees cases and more on FLexlaw
Thomas Giovanini (“Former Husband”) appeals the trial court’s order denying the Former Husband’s motions for relief filed pursuant to Florida Rule of Civil Procedure 1.540(b) and challenges the trial court’s order awarding Donna Giovanini (“Former Wife”) temporary appellate attorney’s fees to defend the appeal pursuant to section 61.16(1), Florida Statutes (2011). We affirm the trial court’s order denying the Former Husband’s motions filed pursuant to rule 1.540(b) without further discussion. However, for the reasons that follow, we reverse the trial court’s award of temporary appellate attorney’s fees.
The Former Husband filed several motions pursuant to rule 1.540(b) requesting relief from the trial court’s Order Calculating Former Spouse’s Share of Military Retirement Pay and the trial court’s Order on Judgment and Arrears, which the trial court denied. During the pendency of the Former Husband’s appeal, the Former Wife filed a motion for temporary appellate attorney’s fees in the trial court alleging that the Former Husband had the ability to pay her temporary appellate attorney’s fees and that she needed such assistance. The Former Wife further alleged that her counsel estimated that it would take twenty hours to defend the appeal at a rate of $250.00 per hour. Subsequently, the trial court entered an order directing the Former Wife to prepare a memorandum of law addressing the Former Wife’s legal entitlement to an award of temporary appellate attorney’s fees and directed the Former Husband to file a response to the memorandum of law. The trial court indicated that upon consideration of the arguments presented by the parties, it would then determine whether the Former Wife was entitled to an award and, if so, it would set the matter for a hearing. However, after the parties filed their respective memoranda in support of and in opposition to the Former Wife’s motion, the trial court, in lieu of a hearing, entered an order granting the Former Wife’s motion. The trial court found that the Former Husband had the ability to pay the Former Wife’s temporary appellate attorney’s fees, the Former Wife needed such assistance, and that twenty hours at a rate of $250.00 per hour was a reasonable estimate of the time needed to defend the appeal. Consequently, the trial court ordered the Former Husband to pay the Former Wife $5,000. On appeal, the Former Husband filed a motion pursuant to Florida Rule of Appellate Procedure 9.600(e)(3) requesting review of the trial court’s order awarding the Former Wife temporary appellate attorney’s fees. The Former Husband argues, among other things, that the trial court reversibly erred *282in awarding the Former Wife temporary appellate attorney’s fees without conducting a hearing on the motion.
A trial court’s award ' of attorney’s fees is reviewed for an abuse of discretion. Campbell v. Campbell, 46 So.3d 1221, 1222 (Fla. 4th DCA 2010). An award of attorney’s fees pursuant to section 61.16 must be based on the need of the party seeking the fees and the ability of the other party to pay the fees. Jones v. Jones, 671 So.2d 852, 855 (Fla. 5th DCA 1996). The trial court must also make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors. Davis v. Davis, 613 So.2d 147, 148 (Fla. 1st DCA 1993). “[T]he party seeking fees must prove with evidence the reasonableness and the necessity of the fee sought.” Baker v. Baker, 35 So.3d 76, 77 (Fla. 2d DCA 2010) (quoting Chhouri v. Chhouri, 2 So.3d 987, 988 (Fla. 2d DCA 2008)). “Absent a stipulation, this must be determined at an evi-dentiary hearing.” Jones, 671 So.2d at 855. This is a basic element of due process. Matlack v. Matlack, 893 So.2d 656, 657 (Fla. 4th DCA 2005).
Here, the trial court, in the order under review, should not have determined the amount of the fee award when the trial court expressly provided in its prior order that it would set the matter for a hearing if it determined that the Former Wife was entitled to an award. McIlveen v. McIlveen, 644 So.2d 612, 612 (Fla. 2d DCA 1994). Moreover, absent a stipulation by the parties, the reasonableness and the necessity of the fee sought should have been determined at a hearing.
Accordingly, we affirm the trial court’s order denying the Former Husband’s motions filed pursuant to rule 1.540(b) and we reverse the award of temporary appellate attorney’s fees.
AFFIRMED in part, and REVERSED in part.
VAN NORTWICK and SWANSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
-
Winder v. Dian A. Winder, 152 So. 3d 836 (Fla. 1st DCA 2014)…wever, on remand, the trial court again orders the Husband to pay a portion of the Wife’s attorney’s fees, it must base its award “on the need of the party seeking the fees and the ability of the other party to pay the fees.” Giovanini v. Giovanini, 89 So. 3d 280, 282 (Fla. 1st DCA 2012) (citing Jones v. Jones, 671 So. 2d 852, 855 (Fla. 5th DCA 1996)). “The trial court must also make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enha…
-
Williams v. Williams, 152 So. 3d 702 (Fla. 1st DCA 2014)…order currently before us still lacks findings on the parties’ relative financial abilities — i.e., the Former Wife’s need and the Former Husband’s ability to pay some portion of her attorney’s fees. See § 61.16, Fla. Stat.; Giovanini v. Giovanini, 89 So. 3d 280, 282 (Fla. 1st DCA 2012). It states only, “The Former Husband is in a superior position to contribute to said attorneys’ fees and costs under the analysis set forth in Pelton v. Pelton, 617 So. 1152 (Fla. 1st DCA 1977) [sic].” Not only does this lon…
-
Duke v. Duke, 211 So. 3d 1078 (Fla. 5th DCA 2017)…he need for and ability to pay attorney’s fees, “[t]he trial court must also make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors.” Giovanini v. Giovanini, 89 So. 3d 280, 282 (Fla. 1st DCA 2012) (citing Davis v. Davis, 613 So. 2d 147, 148 (Fla. 1st DCA 1993)). A dissolution order awarding attorney’s fees that “recites simply that the total amounts ‘are reasonable time spent and hourly rates,’ is insufficient under […
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McILVEEN v. McILVEEN, 644 So. 2d 612 (Fla. 2d DCA 1994)
- Campbell v. Dina M. Campbell, 46 So. 3d 1221 (Fla. 4th DCA 2010)
- Trammell v. Showell Farms & Liberty Mut. Ins. Co., 613 So. 2d 147 (Fla. 1st DCA 1993)
- Jones v. Jones, 671 So. 2d 852 (Fla. 5th DCA 1996)
- Baker v. Baker, 35 So. 3d 76 (Fla. 2d DCA 2010)
- Chhouri v. Adoline Chhouri, 2 So. 3d 987 (Fla. 2d DCA 2008)
- Matlack v. Matlack, 893 So. 2d 656 (Fla. 4th DCA 2005)