FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-2071
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SEAN PATRICK MAHONEY,
Appellant,
v.
VIRGINIA COLBY MAHONEY,
Appellee.
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On appeal from the Circuit Court for Okaloosa County.
John Jay Gontarek, Judge.
July 9, 2018
JAY, J.
In this appeal from a final judgment of dissolution of
marriage, the former husband raises the following issues: (I) the
trial court erred in ordering him to pay $1500 in monthly,
durational alimony to the former wife for four years; (II) the trial
court erroneously calculated child support under the child support
guidelines; (III) the trial court erred by ordering the former
husband to pay $3000 in attorney’s fees to the former wife; (IV) the
trial court erred by requiring the former husband to secure the
alimony and child support awards with life insurance and by
ordering the former husband to designate the former wife as the
beneficiary of his survivor benefit plan; (V) the trial court
miscalculated when the former husband’s military retirement plan
ceased to be a marital asset; and (VI) the trial court erred in the
manner by which it directed the division of the parties’ tangible
personal property.
Finding no need for further elaboration of the following points,
we conclude without comment that there was no abuse of
discretion or legal error in the trial court’s award of durational
alimony to the former wife; in its decision to designate the former
wife as the irrevocable beneficiary of the former husband’s
survivor benefit plan (thereby awarding her the maximum amount
available of 55% of the annuity upon the former husband’s death);
or in its directions concerning the distribution of the parties’
tangible personal assets. We also affirm without comment the trial
court’s calculation of the monthly child support award. ∗
Concerning the remaining issues on appeal, we find, first, that
the trial court abused its discretion in awarding the former wife
attorney’s fees without making the requisite findings. We also find
that the trial court erred when it failed to make specific findings
before directing the former husband to secure life insurance. And,
lastly, we find the trial court miscalculated the former wife’s
marital share of the former husband’s military retirement
benefits. On these matters, we reverse and remand for further
proceedings as discussed in greater detail below.
Attorney’s Fees
In its final judgment, the trial court ordered the former
husband to pay to the former wife $3000 in attorney’s fees, finding
that she had the need for payment of her fees and he had the ability
to pay. A trial court’s award of attorney’s fees is reviewed for an
∗
We do note that the former husband failed to raise in his
motion for rehearing any argument that the child support award
lacked the necessary written findings to support a variance of more
than 5% from the guideline amount as required by section
61.30(1)(a), Florida Statutes (2016). The former husband’s failure
to bring this aspect of the child support order to the trial court’s
attention—in his motion for rehearing—waived his argument on
this issue. See Brock v. Brock,
229 So. 3d 425 (Fla. 1st DCA 2017)
(Mem.) (citing cases).
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abuse of discretion. Ziruolo v. Ziruolo,
217 So. 3d 1170, 1172 (Fla.
1st DCA 2017).
Attorney fee awards in dissolution actions are governed by
section 61.16, Florida Statutes (2016), “which requires the court to
consider ‘the relative financial resources of the parties’ in
evaluating whether an award of fees is appropriate.” Perez v. Perez,
100 So. 3d 769, 771 (Fla. 2d DCA 2012). “The purpose of the statute
is ‘to ensure that both parties will have a similar ability to obtain
competent legal counsel.’” Schwartz v. Schwartz,
965 So. 2d 832,
833 (Fla. 1st DCA 2007) (quoting Rosen v. Rosen,
696 So. 2d 697,
699 (Fla. 1997)). “In determining whether to make such an award,
the trial court is to primarily consider the relative financial
resources of the parties, but may also consider any other factor
necessary to provide justice and ensure equity.” Schwartz,
965 So.
2d at 833 (citing
Rosen, 696 So. 2d at 700). If there is a finding of
entitlement, the trial court must evaluate the reasonableness of
the requested fee. Ortiz v. Ortiz,
227 So. 3d 730, 732 (Fla. 3d DCA
2017); see also Schwartz,
965 So. 2d at 833-34.
In evaluating reasonableness, the trial court should consider
the following:
(1) the time and labor required, the novelty and difficulty
of the issues, and the legal skill required; (2) the
likelihood that the representation will preclude other
employment by the lawyer; (3) the customary fee; (4) the
result obtained; (5) the time limitations imposed by the
client or circumstances; (6) the nature and length of the
professional relationship with the client; (7) the
experience, reputation and ability of the lawyers; and (8)
whether the fee is fixed or contingent.
Schwartz,
965 So. 2d at 833-34 (citations and internal quotation
marks omitted). After completing this analysis, the trial court
must “set forth findings . . . [as to] the factors that justify the
specific amount awarded.” Rogers v. Rogers,
12 So. 3d 288, 292
(Fla. 2d DCA 2009). Those factors include “the hourly rate, the
number of hours reasonably expended, and the appropriateness of
reduction or enhancement . . . .” Giovanini v. Giovanini,
89 So. 3d
280, 282 (Fla. 1st DCA 2012). “Where there is nothing in the trial
court’s order that allows the appellate court to discern whether any
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of the above factors were considered in determining a reasonable
attorney’s fee, a fee award simply taking the amount charged by
the attorney and determining it to be reasonable is improper and
an abuse of discretion.”
Campbell, 46 So. 3d at 1223 (citing
Schwartz,
965 So. 2d at 833).
Here, although the former wife testified at the final hearing
that she was asking the trial court to order the former husband to
pay her attorney’s fees, no evidence was presented regarding the
amount of those fees, and there is nothing on the face of the final
judgment revealing that the trial court made the requisite factual
determinations. Accordingly, the trial court abused its discretion
in awarding $3000 in fees to be paid by the former husband. See
Nagl v. Navarro,
187 So. 3d 359, 361 (Fla. 4th DCA 2016) (internal
citations and quotation marks omitted) (“An award of attorney’s
fees must be supported by substantial competent evidence and
contain express findings regarding the number of hours reasonably
expended and a reasonable hourly rate for the type of litigation
involved.”); see also Garrido v. Garrido, No. 4D17-2140,
2018 WL
2746375 at *1 (Fla. 4th DCA June 6, 2018) (reversing final
judgment for attorney’s fees and remanding for the trial court “to
make the appropriate findings as to the reasonableness of the
hours expended and the hourly rate,” quoting Nagl).
However, we are not persuaded by the former husband’s
argument that the former wife “invited the error” below. The
former husband relies on Held v. Held,
617 So. 2d 358 (Fla. 4th
DCA 1993), to claim the former wife is not entitled to a “second bite
at the apple on remand.” In Held, the husband took inconsistent
positions at trial and on appeal. That tactic prompted the Fourth
District to hold that “[a] party cannot claim as error on appeal that
which he invited or introduced below.”
Id. at 360.
In this case, the former wife has consistently claimed that she
needs the former husband to pay her attorney’s fees and that the
former husband is able to pay those fees. That position requires
appropriate factual findings by the trial court. The former wife,
therefore, did not invite the error of which the former husband now
complains.
Accordingly, the award of attorney’s fees is reversed and the
cause is remanded for the trial court to determine the reasonable
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amount of the former wife’s attorney’s fees, applying the factors
outlined above.
Life Insurance to Secure Alimony and Child Support
A trial court’s decision to require the obligor spouse to
maintain life insurance to secure awards of alimony and child
support is reviewed for an abuse of discretion. Therriault v.
Therriault,
102 So. 3d 711, 713 (Fla. 1st DCA 2012). Here, the trial
court was authorized by the provisions of sections 61.08(3) and
61.13(1)(c), Florida Statutes (2016), to require the former
husband—as the party ordered to pay alimony and child support—
to purchase or maintain life insurance to secure those awards.
However, it was an abuse of discretion for the trial court to
order the former husband to do so without first making “‘specific
evidentiary findings as to the availability and cost of insurance,
the [former husband’s] ability to pay, and the special
circumstances that warrant such security.’”
Therriault, 102 So. 3d
at 713 (bracketed language in original) (quoting Kotlarz v. Kotlarz,
21 So. 3d 892, 893 (Fla. 1st DCA 2009)). Of particular note, such
“special circumstances” include minor children living at home.
Further, the amount of insurance must be “‘related to the extent
of the obligation being secured.’”
Id. (internal citations omitted)
(quoting
Kotlarz, 21 So. 3d at 893). Thus, in the present case,
“[w]hile there may be a basis in the record for such a finding,” we
must reverse and remand to the trial court to “include the required
specific findings . . . [that] require the security.” Gotro v. Gotro,
218
So. 3d 494, 498 (Fla. 1st DCA 2017).
Military Retirement Plan
As far as identifying the military retirement plan as a marital
asset, the former husband argues that the trial court utilized an
incorrect cut-off date. We agree.
Section 61.075(7), Florida Statutes (2016), provides that
absent a valid separation agreement, “[t]he cut-off date for
determining assets and liabilities to be identified or classified as
marital assets and liabilities is . . . the date of the filing of a petition
for dissolution of marriage.” Here, as there was no separation
agreement between the parties, the trial court appropriately
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utilized the date when the husband filed his petition for dissolution
of marriage. See Willman v. Willman,
944 So. 2d 1151, 1151 (Fla.
1st DCA 2006) (“As the parties did not have a separation
agreement, the husband’s pension plan continued as a marital
asset until he filed for divorce on August 10, 2004.”); see also Peter
Cushing, Effects of Military Service, Adoption, Paternity, and
Other Family Practice, § 8-1 (Fla. Bar CLE 12th ed. 2017) (citations
omitted) (“Florida has a bright line rule that in the absence of a
marital settlement agreement, the date to be used to determine
the marital classification of assets and liabilities is the date of the
filing of the petition for dissolution of marriage and all retirement
points earned on a military pension after the date of filing are
nonmarital.”).
In reciting the pertinent background facts in its final
judgment, the trial court stated that “[t]he parties were married to
each other for a period of 6 years 8 months through the date of
filing.” (Emphasis in the original.) Later, the court reiterated this
eighty-month determination as part of its evaluation of the former
wife’s entitlement to the marital portion of the former husband’s
military retirement.
However, the trial court’s finding that the parties were
married for eighty months has no basis in the record. At the time
the former husband filed his petition for dissolution of marriage,
the parties had been married for just over four years and eight
months, or fifty-six months. Therefore, this portion of the final
judgment must be reversed and remanded for the trial court to
correct the cut-off date for identifying the former husband’s
military retirement as a marital asset under section 61.075(7). On
remand, the other references in the final judgment to the incorrect
length of the marriage measured by the date of filing should
likewise be corrected.
As to the remainder of the former husband’s argument under
this point, it, too, suffers the infirmity of having been omitted from
his motion for rehearing. Consequently, his additional claims were
waived for review.
Brock, 229 So. 3d at 425.
For all the reasons expressed above, the case is AFFIRMED, in
part, REVERSED, in part, and REMANDED for further proceedings
consistent with this opinion.
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WOLF and WINSOR, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Brian P. North, Kenny Leigh & Associates, Fort Walton Beach, for
Appellant.
Clark H. Henderson, Oberliesen & Henderson, Fort Walton Beach,
for Appellee.
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