DEBRA A. JOOSTE v. MICHAEL W. JOOSTE , 273 So. 3d 6 ( 2019 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DEBRA A. JOOSTE,
Appellant,
v.
MICHAEL W. JOOSTE,
Appellee.
No. 4D18-2736
[May 8, 2019]
Appeal of non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Scott Suskauer, Judge; L.T. Case
No. 502017DR009547XXXNB.
Brittani S. Gross, Doreen Inkeles and Charles D. Jamieson of The Law
Firm of Charles D. Jamieson, P.A., West Palm Beach, for appellant.
Cash A. Eaton of Sasser, Cestero & Sasser, P.A., West Palm Beach, for
appellee.
KUNTZ, J.
The Wife appeals a temporary relief order that awarded her temporary
alimony and denied her request for temporary attorney’s fees, suit money,
and professional fees. The temporary relief order granted the Husband
unsupervised timesharing with minor children. Finally, the court found
the Wife had the need to receive temporary child support and that the
Husband had the ability to pay for it, but it made no separate or express
provision relating to child support.
We reverse the court’s order for failing to make findings on child
support. We also reverse the court’s order denying the Wife temporary
attorney’s fees, suit money, and professional fees, for failing to consider
the required factors. We otherwise affirm without discussion.
i. The Court Failed to Award Child Support
The Wife argues the court erred by failing to make an express award of
child support after finding that she established a need. The Husband
partially concedes error but argues the court intended the alimony
awarded in the temporary relief order to include both temporary alimony
and child support.
The Husband acknowledges the court needed to identify the amount of
the support award that was alimony and the amount that was child
support. See Van Maerssen v. Gerdts, 213 So. 3d 952, 953 (Fla. 4th DCA
2017) (holding that undifferentiated spousal and child support is an abuse
of discretion (citing Greenhouse v. Greenhouse, 913 So. 2d 1201 (Fla. 4th
DCA 2005); Blum v. Blum, 769 So. 2d 1142, 1143 (Fla. 4th DCA 2000))).
He also concedes that the court erred in failing to identify the parties’
respective incomes in its temporary relief order. See Lopez v. Regalado,
257 So. 3d 550, 558 (Fla. 3d DCA 2018) (recognizing that in awarding child
support, the trial court must make findings on the parties’ income
(citations omitted)).
Based on the Husband’s proper confession of error, we reverse the
temporary alimony order.
ii. The Temporary Fee Award Failed to Identify Factors
The court denied the Wife temporary attorney’s fees and professional
fees. The Wife argues the court failed to consider all factors required when
awarding temporary attorney’s fees and costs.
To ensure that both parties have the ability to obtain competent legal
counsel, a court is permitted to award reasonable attorney’s fees and
costs. Nichols v. Nichols, 519 So. 2d 620, 621 (Fla. 1988) (citations
omitted); § 61.16(1), Fla. Stat. (2018). “[T]he appropriate inquiry and
standard to be applied is the same whether the fees requested are
temporary or final.” Nichols, 519 So. 2d at 622 (citations omitted). But
see Kasm v. Kasm, 933 So. 2d 48, 51 (Fla. 2d DCA 2006) (“It seems to me
that the process of setting a temporary award of attorneys’ fees in a divorce
proceeding should not be subjected to the same rigors as a final award.”
(Altenbernd, J., concurring) (citations omitted)).
That inquiry “is whether one spouse has a need for suit money and the
other has the ability to pay” and also requires the court to “determine the
reasonableness of any attorney’s fees and costs prior to ordering a party
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to pay them.” Duncan v. Duncan, 642 So. 2d 1167, 1168 (Fla. 4th DCA
1994) (citations omitted). The Florida Supreme Court provided other
factors to consider,
such as the scope and history of the litigation; the duration of
the litigation; the merits of the respective positions; whether
the litigation is brought or maintained primarily to harass (or
whether a defense is raised mainly to frustrate or stall); and
the existence and course of prior or pending litigation.
Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997).
Here, the court did not make findings on the complexity of the case, the
Wife’s need for temporary fees, the Husband’s ability to pay temporary
fees, or the reasonableness of the fees sought. Instead, it compared the
amount the Wife paid for professional services to the amount the Husband
paid. Because the Wife paid twice the amount as the Husband, the court
denied her temporary fees.
The court therefore erred when it considered no factors other than the
amount paid by each party. As a result, we reverse the order denying the
Wife temporary fees, suit money, and professional fees.
iii. Conclusion
Based on the Husband’s confession of error, we reverse the court’s
order relating to child support. We also reverse the court’s order denying
the Wife temporary fees, suit money, and professional fees. The case is
remanded for further proceedings.
Affirmed in part; reversed in part; and remanded.
GERBER, C.J., and CIKLIN, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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