Card v. Card ( 2015 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
SUZZANN EVANS CARD, )
)
Appellant, )
)
v. ) Case No. 2D13-6054
)
DONALD L. CARD, )
)
Appellee. )
___________________________________ )
Opinion filed January 30, 2015.
Appeal from the Circuit Court for Highlands
County; Olin W. Shinholser, Judge.
Mark A. Sessums and Lauren E. Jenson of
Sessums Law Group, P.A., Sebring, for
Appellant.
No appearance for Appellee Donald L. Card.
LaROSE, Judge.
Suzzann Card appeals the trial court’s order capping the amount of
attorney’s fees she recovered in her dissolution proceeding against her former husband,
Donald Card. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). Because Ms.
Card agreed to the methodology used by the trial court, we affirm.
During the dissolution proceedings, Ms. Card filed a motion for temporary
attorney's fees and costs. After a hearing, the trial court ordered Mr. Card to pay Ms.
Card's counsel $7,500 for temporary fees and costs. Ms. Card appealed that order.
She dismissed the appeal after she and Mr. Card reached a stipulated settlement on
temporary attorney's fees. Their Joint Stipulation Regarding Temporary Attorney's Fees
provided, in pertinent part, as follows:
[T]he Husband shall pay the sum of $10,000 directly [to]
Wife's counsel . . . as and for a settlement on the issue of
temporary fees and costs. Such settlement is intended to
forestall the need for any appeal as to the prior temporary
fee request. This payment is without prejudice to both
parties at the final hearing. Husband reserves all rights to
contest any further or final fee requests or to argue that the
prenuptial agreement requires the credit for such fees to
Husband from any monetary awards to Wife and Wife
reserves the right to seek additional fees and costs at the
final hearing. All arguments by both parties as to such
payment of $10,000 are reserved to the parties for the final
hearing. . . . In addition, Husband shall pay to Wife's
counsel an amount of fees equal to those fees paid by
Husband to his counsel should Husband's fees exceed
$20,000 prior to the final hearing without prejudice for
Husband to receive credit against Wife's award in equitable
distribution (and Wife's right to contest such credit).
The trial court approved the joint stipulation. As a result, the parties
retained their rights to argue later whether the initial $10,000 temporary fee amount
would become part of the final fees awarded to Ms. Card or be deducted from her
equitable distribution. The joint stipulation is clear that Ms. Card could request
additional fees at the final hearing. If Mr. Card's fees exceeded $20,000 by the final
hearing, he would pay Ms. Card's counsel additional temporary fees capped at the
amount his counsel charged him.
By the time of the final hearing, Mr. Card had paid approximately $43,000
of Ms. Card's attorney's fees and costs, including more than $19,000 for Ms. Card's
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financial expert fees. Ms. Card's counsel filed an affidavit showing that Ms. Card had
paid him $280.08, Mr. Card had paid him $22,766.96, with a balance due of $73,015.63.
However, at the final hearing, the parties urged the trial court to decide only Ms. Card's
entitlement to attorney's fees, reserving any ruling on the amount.1 The trial court
agreed.
In its amended final judgment, the trial court stated as follows:
[H]usband agreed to pay to wife's counsel an amount of fees
equal to those fees paid by husband to his counsel should
husband's fees exceed $20,000.00 prior to the final hearing
without prejudice for husband to receive credit against wife's
award in equitable distribution (and wife's right to contest
such credit). . . . The court hereby finds that the wife is not
entitled to an award of attorney's fees and costs. Based
upon the wife's needs and husband's ability to pay, the court
awarded to wife temporary attorney's fees and costs to date
exceeding $42,766.96. The court hereby finds that the wife
is entitled to attorney's fees up to the amount the husband
has paid fees thru [sic] the final hearing.
....
Wife's request for attorney's fees and costs is granted up to
the extent husband paid/charged attorney's fees and costs.
Wife's counsel must furnish the husband's counsel the
records requested that show what husband's counsel
paid/charged thru [sic] the final hearing. The court reserves
jurisdiction to determine the amount of the fees as set forth
herein.
1
The parties presented evidence of their overall finances at the final
hearing. The trial court may have relied on this evidence not only for equitable
distribution, but also in computing the parties' post-judgment financial resources to
determine Ms. Card's need for attorney's fees and Mr. Card's ability to pay in ruling on
entitlement. See Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997); Crick v. Crick, 78
So. 3d 696, 699 (Fla. 2d DCA 2012).
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The trial court made no factual findings at the final hearing or in the written amended
judgment as to Ms. Card's need or Mr. Card's ability to pay attorney's fees and costs.
See Perez v. Perez, 100 So. 3d 769, 771 (Fla. 2d DCA 2012).
Ms. Card appealed the amended final judgment. Card v. Card, 122 So. 3d
436 (Fla. 2d DCA 2013). We affirmed in part, but dismissed her challenge to the
attorney's fees and costs award because the amended final judgment was ambiguous
and did not set a fee amount. Id. at 437 (citing Zuberer v. Zuberer, 28 So. 3d 993, 993-
94 (Fla. 2d DCA 2010) (affirming amended final judgment of dissolution but dismissing
ruling determining only entitlement to fees as premature because ruling was nonfinal
and nonappealable until trial court determined amount of fees)). We directed the trial
court to clarify the ambiguity and determine the fee. Id.We pause to reiterate that the joint stipulation addressed only temporary
fees up to the final hearing. Seemingly, the parties reserved the right to litigate not only
need and ability to pay, but also the reasonable amount of the final award. At first
blush, therefore, the matching-amount provision was not determinative as to the fees
payable to Ms. Card. Indeed, our record indicates that, on remand, Mr. Card
contemplated a challenge to the reasonableness of all fees charged by Ms. Card's
counsel. "When someone other than an attorney's own client is required to pay their
fees, the trial court must award a reasonable fee, determined from testimony (absent
any stipulations) as to the prevailing rates for attorneys in comparable circumstances
and the amount of time reasonably expended on the matter." Kemp v. Kemp, 61 So. 3d
481, 481 (Fla. 5th DCA 2011); see also Snow v. Harlan Bakeries, Inc., 932 So. 2d 411,
412 (Fla. 2d DCA 2006).
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Mr. Card's counsel expressed her intention to present expert testimony
about the reasonableness of Ms. Card's fees. To forestall such a challenge, Ms. Card
argued that an evidentiary hearing was inappropriate because the trial court had already
set and capped the amount of fees; she stated that the fees and costs payable to her
counsel were satisfied by Mr. Card's payment of $38,463.85, the same amount that Mr.
Card's counsel charged through the final hearing. Ignoring the fact that the joint
stipulation addressed only temporary fees, Ms. Card further argued that no assessment
of reasonableness was necessary because the parties had stipulated that Ms. Card
would get the same amount that Mr. Card's counsel charged him. Ms. Card's counsel
stated, "We're simply asking the Court at this point to document what the Court provided
for, that attorney's fees are the $38,463.85 pursuant to the amended final judgment."
Ms. Card prevailed on this point. The trial court did not hold a hearing on
the reasonable amount of fees to be awarded to Ms. Card. Instead, the trial court
issued its final order on attorney's fees and costs. In accordance with our previously
issued mandate, the trial court agreed that the amended final judgment was ambiguous
because it stated both that Ms. Card was not entitled to attorney's fees and costs and
that she was entitled to such an award. The final fee order reflected the trial court's
intent in the Amended Final Judgment to set the amount of Ms. Card's award of
attorney's fees and costs at the amount Mr. Card's attorney charged him, consistent
with the parties' joint stipulation. The order provided that Mr. Card incurred $38,655.49
through the final hearing and had paid Ms. Card's counsel $38,463.85, "which the
parties agree, and the court finds, satisfies the amount due and owing to the former wife
and former wife's counsel pursuant to paragraph 5 of the Amended Final Judgment."
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Accordingly, the trial court awarded Ms. Card that amount of attorney's fees and costs.
The trial court made no additional findings regarding Ms. Card's need for attorney's
fees, Mr. Card's ability to pay, or the reasonable amount of fees incurred by Ms. Card.
Mr. Card has not appealed.2
Despite the ardor with which she argued against the need for a
reasonableness hearing and expressed her satisfaction with a fee award of over
$38,000, Ms. Card argues the opposite on appeal. She now contends that the trial
court abused its discretion in "arbitrarily" capping her attorney's fees award at the
amount Mr. Card incurred. She claims that Mr. Card's income and net worth are
substantially higher than hers. She complains that the trial court never made findings of
the reasonable and necessary attorney's fees she incurred, and that this court should
reverse and remand for further proceedings "to determine a reasonable amount based
on her need and ability to pay, and not based on the arbitrary amount Former Husband
paid his attorney." Her position on remand before the trial court waived her current
contentions. See Goodwin v. State, 751 So. 2d 537, 544 n.8 (Fla. 1999) ("Under the
invited-error doctrine, a party may not make or invite error at trial and then take
advantage of the error on appeal."); Tate v. Tate, 91 So. 3d 199, 204 (Fla. 2d DCA
2012) (holding invited error rule prevents party from complaining on appeal about a
ruling that party invited trial court to make).
Under these circumstances, we are compelled to conclude that the trial
court did not err in awarding a final amount of attorney's fees on a matching basis
2
Mr. Card has not participated in this appeal.
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without specific factual findings about Ms. Card's need for attorney's fees, Mr. Card's
ability to pay, and the reasonableness of the award.
Affirmed.
NORTHCUTT and CRENSHAW, JJ., Concur.
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