SRINATH SUBRAMANIAN v. VEENA SUBRAMANIAN , 260 So. 3d 1075 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SRINATH SUBRAMANIAN,
Appellant,
v.
VEENA SUBRAMANIAN,
Appellee.
Nos. 4D17-3400, 4D17-3603
and 4D18-268
[December 5, 2018]
Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Lester Langer, Senior Judge; L.T. Case
No. FMCE14-000510(35).
Lori D. Shelby of the Law Office of Lori D. Shelby, Fort Lauderdale, for
appellant.
Terrence P. O'Connor of Morgan, Carratt & O'Connor, P.A., Fort
Lauderdale, for appellee.
WARNER, J.
Appellant, former husband, challenges the trial court’s final judgment
awarding attorney’s fees to the former wife and guardian ad litem, which
award was based upon the appellant’s vexatious litigation. The trial court
determined the entitlement to fees in the final judgment of dissolution of
marriage after a contentious ten-day trial where appellant represented
himself. It awarded fees against the appellant, relying on Mettler v. Mettler,
569 So. 2d 496 (Fla. 4th DCA 1990) and Rosen v. Rosen, 696 So. 2d 697(Fla. 1997). We affirm.
Appellant contends that his due process rights were violated because
he was not given notice that the court would determine entitlement to
attorney’s fees during the trial on the dissolution. We disagree that he was
denied due process. First, the order setting the case for trial identified
attorney’s fees as an issue at trial. Second, even if the order was not
specific to the continued trial date, both in opening and closing argument,
the former wife requested fees based upon vexatious litigation.
Furthermore, both parties addressed entitlement to fees in closing
argument. In addition, during his case, the husband called his former
attorney to address the scope of litigation, thus addressing the issue of
vexatious litigation. Third, although he points to the court’s statement
that it would deal with the multiple motions for attorney’s fees at the end,
it appears to us that these comments were directed to whether the
attorneys should testify in the dissolution trial as to the services rendered
for the amount of fees, not entitlement. Thus, at the very least, the issue
of entitlement was tried by implied consent. See D.J. v. Dep’t of Children
and Families, 9 So. 3d 750, 755 (Fla. 2d DCA 2009) (finding because
parties argued the contested issue during closing arguments and the
opposing party did not object to evidence on the issue, the issue was tried
by implied consent, and the party’s due process rights were not violated).
No fundamental due process error occurred.
We affirm as to the remaining issues. With respect to the final
calculation of attorney’s fees and costs in the order granting fees to the
former wife, there was a scrivener’s error in the column assessing fees to
the appellant. While the court ordered that the appellant pay sixty percent
of the wife’s fees and costs, the figure in the husband’s column for the
wife’s trial attorney represents the entire fee. However, the ultimate
amount that the husband was ordered to pay—$347,216.25—is sixty
percent of all fees, including the appellate fees due to the wife’s attorney.
Thus, on remand the court should correct the clerical error in the
judgment.
Affirmed and remanded for correction of judgment.
DAMOORGIAN and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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