Denise Chianese v. Gregory A. Brady , 2015 Fla. App. LEXIS 11732 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DENISE CHIANESE,
Appellant,
v.
GREGORY A. BRADY,
Appellee.
No. 4D14-2480
[August 5, 2015]
Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Timothy Bailey, Judge; L.T. Case No.
03-007694 FMCE (41)(93).
Nancy A. Hass of Nancy A. Hass, P.A., Hallandale Beach, for
appellant.
Cynthia L. Greene of the Law Offices of Greene Smith & Associates,
P.A., Coral Gables, and Chorowski & Clary, P.A., Fort Lauderdale, for
appellee.
PER CURIAM.
Affirmed.
CIKLIN, C.J., and CONNER, J., concur.
WARNER, J., concurs specially with opinion.
WARNER, J., concurring specially.
I concur in the affirmance of the denial of a further award of
temporary attorney’s fees in this petition to modify child support. I write
to note my disagreement that the mother had not shown a need for fees,
but I agree that she had not shown that the fees requested were
reasonable or necessary.
The mother was seeking additional child support over and above what
the parties had agreed to years earlier: $6,000 per month plus health
insurance, private schooling, and many other expenses that the father
agreed to pay. The father, never married to the mother, is very wealthy,
and he does not contest his ability to pay temporary attorney’s fees to the
mother. The mother, on the other hand, has little income, yet the court
concluded that she could dip into her retirement account or assets that
she was awarded in her divorce from her husband (not the father), or use
some of the child support that the father is currently paying and thus
had no need for assistance. The mother should not have to invade her
assets to pay her attorney’s fees where the father is so clearly able to pay
them. See Byers v. Byers, 910 So. 2d 336, 342-43 (Fla. 4th DCA 2005)
(based upon parties’ disparate earning potential and the fact that the
wife had to invade her assets to support herself and pay attorney’s fees,
trial court abused its discretion in refusing to award temporary
attorney’s fees).
However, while need and ability to pay are important, the trial court
must always determine the reasonableness of the fees before ordering a
party to pay fees. See § 61.16, Fla. Stat. (2014); Duncan v. Duncan, 642
So. 2d 1167, 1168-69 (Fla. 4th DCA 1994). In this case, the trial court
found that the fees were not reasonable. The court had previously
awarded $30,000 to the mother for temporary fees and then denied a
subsequent request for more, which denial we affirmed on appeal. See
Chianese v. Brady, 158 So. 3d 596 (Fla. 4th DCA 2015). Undeterred, the
mother’s attorney filed this third motion for temporary attorney’s fees.
He justified the need for fees and accountant’s costs based upon the fact
that he was engaging in substantial financial discovery, to which the
father objected, and because he was advancing new and novel theories to
obtain an increase in child support. The court called the case “out of
control” and denied more fees without prejudice to a determination of
fees at the final hearing. In doing so, the court sought to bring some
“economic rationality” to these post-judgment proceedings. See
Woodward v. Berkery, 714 So. 2d 1027, 1031 (Fla. 4th DCA 1998).
In Woodward, for instance, we explained that financial discovery in a
support modification proceeding should not necessarily be as extensive
as in an original proceeding in which the amount of support is
determined and can be limited by the trial court. Id. at 1033-34. This
case, it seems to me, is one where discovery is hardly needed. The father
has already filed his financial affidavit showing wealth and income which
is far more than sufficient to determine whether the child should receive
child support in excess of what the parties agreed to in the past.
Further, the mother’s attorney has stated that he is pursuing new
theories to modify child support, which have required additional time
and expense. For the purposes of an award of temporary fees, I do not
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think that the court needs to award fees so that the mother can devise
new theories to increase her child support. The law of modification and
the essential elements which must be proved are fairly straightforward;
thus, the trial court was right to reject a requested fee in excess of
$100,000 to get the case to trial. Even given the unusual facts of this
case, where the father and mother reunited for a few years and the child
was treated to some of his father’s lavish lifestyle, this is not an initial
determination of child support. The issues are limited, as the trial court
determined, and so is the need for interim attorney’s fees. This does not
preclude the trial court from making an additional award after the court
has heard the entire case and determines that fees were reasonable.
Because the mother did not prove the reasonableness of the fees she
requested, and the father has already paid her $30,000 in temporary
attorney’s fees, I agree that the court did not abuse its discretion in
denying this third motion for fees.
* * *
Not final until disposition of timely filed motion for rehearing.
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