MARIA TEREZA DE CASTELO BRANCO FERREIRA CLEARY, AKA M. TERESA CLEARY, APPELLANT,
v.
ROBERT W. CLEARY, APPELLEE

Fla. 2d DCA | 2017-11-03
No. Case No. 2D16-4691
CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.
232 So. 3d 497 Florida District Court of Appeal, Second District (2017) Positive Treatment
Cited by 2 cases

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.


Holding

The court held that the final judgment awarding attorney's fees to the Former Husband must be reversed because it lacked a clear legal basis and contained conflicting findings that precluded statutory or inherent authority for the award.


Headnotes

[1] A court must state the legal basis for an award of attorney's fees, whether statutory, based on precedent, or inherent authority.

[2] An award of attorney's fees under section 61.16 and Rosen requires consideration of both the parties' ability to pay and the reasonableness of the fees incurred.

Previewing 2 of 5 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

Facts & Procedural History

Following a prior appeal and remand, the parties sought an accounting of payments. The trial court entered a final judgment awarding attorney's fees a…

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.


Opinion of the Court
LUCAS, Judge.

LUCAS, Judge.

In Cleary v. Cleary, 872 So.2d 299 (Fla. 2d DCA 2004), an opinion that provides the backdrop for the present appeal, we reversed part of the circuit court’s equitable, distribution and retroactive alimony award in a final judgment of dissolution of marriage and remanded the case for further proceedings so that the circuit court could fashion an appropriate adjustment. We do not know why, but the parties chose not to pursue the matter further in the circuit court for more than a decade. In 2014 and 2016, however, the litigants brought the dispute back before the court, seeking what was, in essence, an accounting of all the payments and transactions that had transpired which they contended should be considered in the wake of this court’s 2004 opinion and remand. On August 30, 2016, after the conclusion of evidentiary hearings in which the parties presented numerous financial documents and the testimony of accountants, the circuit court entered a final judgment. The final judgment incorporated findings from a prior omnibus order and money judgment that had been entered on October 5, 2016. Among its rulings and determinations, the circuit court’s .final judgment awarded $94,482.25 of attorney’s fees and costs to Robert W. Cleary, the Former Husband. Maria Tere-za de Castelo Branco Ferreira Cleary, the Former Wife, now appeals that ruling.

From our review of thé record, we find no error in the court’s factual determinations, including its conclusion that the attorney’s fees and costs the Former Wife incurred after a December 1, 2014, meeting between the parties’ respective accountants were not reasonable. We also agree with the circuit court’s observation in the final judgment that the Former Wife’s “pursuit of her claims [was] completely. without merit, unjustified[,] and caused attorney’s fees 'and costs for [the] Former Husband that should not have been incurred.”1

What we find problematic is that the final judgment never described what legal basis supported an attorney’s fee award in favor of the Former Husband, whether it might be section 61.16, Florida Statutes (2016), Rosen v. Rosen, 696 So.2d 697 (Fla. 1997), or the court’s “inherent authority” to sanction egregious conduct or bad faith litigation. See Moakley v. Smallwood, 826 So.2d 221, 226 (Fla. 2002); Myrick v. Myrick, 214 So.3d 769, 772 (Fla. 2d DCA 2017). Although otherwise thorough and detailed, the final, judgment is silent on this point.

In his briefing and at oral argument, the Former Husband disclaimed inherent authority as a basis for the circuit court’s ruling, instead arguing that we should simply construe the circuit court’s findings within the framework of section 61.16(1) and Rosen. We are prevented from doing so, however, because the final judgment included findings that the Former Wife was entitled to have her attorney’s fees paid for by the Former Husband (up to December 1, 2014), and that the Former *499Husband had an ability to pay those fees for her. Those findings preclude premising a fee award to the Former Husband under section 61.16 and Rosen. See Rogers v. Wiggins, 198 So.3d 1119, 1121 (Fla. 2d DCA 2016) (holding under section 61,16(1) and Rosen that “[wjhile the trial court may take into account the manner & which the mother litigated a case, that factor ‘does not, however, abrogate the requirement that [the mother] have the ability to pay.’ ” (second alteration in original) (quoting Zanone v. Clause, 848 So.2d 1268, 1271 (Fla. 5th DCA 2003))); Hahamovitch v. Hahamovitch, 133 So.3d 1020, 1024-25 (Fla. 4th DCA 2014) (“Rosen cannot be applied to allow an award of attorney’s fees in favor of a spouse with the greater financial ability to pay.”). Were we to categorize the final judgment’s fee award as an exercise of inherent authority — which, again, the Former Husband does not believe we should do — we would still be constrained to reverse that part of the judgment, as the disputed accounting issues concerning credits and payments between these litigants do not present the kind of “extreme case” that would give rise to this “rarely applicable” common law sanction. See Bitterman v. Bitterman, 714 So.2d 356, 365 (Fla. 1998); Hallac v. Hallac, 88 So.3d 253, 259 (Fla. 4th DCA 2012) (“Such awards are rarely applicable and should be reserved for extreme cases ... .”).2

Accordingly, we must reverse the portion of the final judgment that awards the Former Husband his attorney’s fees from the Former Wife. We affirm the judgment in all other respects. On remand, the circuit court shall enter an amended final judgment striking the fee award in favor of the Former Husband.

Affirmed in part; reversed in part; remanded with instructions.

CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Cletcher v. Cletcher, 348 So. 3d 1223 (Fla. 2d DCA 2022)
    …the present case contains no express finding of bad faith, and it makes no finding demonstrating how the attorney's fee award directly relates to the fees incurred as a result of any alleged bad faith conduct. Like the judgment in Cleary v. Cleary, 232 So. 3d 497, 498 (Fla. 2d DCA 2017), "[a]lthough otherwise thorough and detailed, the [Omnibus Order] is silent on this point." See Ingram, 277 So. 3d at 719 (holding that the trial court was required to explain "what portion of the fees incurred was 'occasion…
  • Alarcon v. Dagen (Fla. 3d DCA 2023)
    …evere v. Derrevere, 899 So. 2d 1152, 1153 (Fla. 4th DCA 2005) (“The standard for awarding attorney’s fees in dissolution cases is the financial need of the requesting party and the financial ability of the other party to pay.”); Cleary v. Cleary, 232 So. 3d 497, 498–99 (Fla. 2d DCA 2017) (reversing order that wife pay husband’s attorney’s fees because husband had ability to pay and wife had need); Cletcher v. Cletcher, 348 So. 3d 1223, 1227 (Fla. 2d DCA 2022) (holding order granting wife attorney’s fee…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw