R. M. A. v. J. A. S.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
R.M.A., )
)
Appellant, )
)
v. ) Case No. 2D18-478
)
J.A.S., )
)
Appellee. )
)
)
J.A.L., f/n/a J.A.S., )
)
Appellant, )
)
v. ) Case No. 2D18-1406
) CONSOLIDATED
R.M.A., )
)
Appellee. )
)
Opinion filed April 26, 2019.
Appeal from the Circuit Court for
Pinellas County; Amy M. Williams,
Judge.
Jane H. Grossman of Law Office of
Jane H. Grossman, St. Petersburg,
for Appellant R.M.A.
Gary E. Williams and Stephen D.
Gregg of The Law Firm for Family
Law, Clearwater, for Appellee J.A.L.
ATKINSON, Judge.
In this consolidated appeal, R.M.A., the father, appeals an order awarding
J.A.L., the mother, attorney's fees following the entry of a final judgment establishing
paternity, child support, and time-sharing, and the mother appeals an order granting her
motion for rehearing requesting a reasonable payment plan on the grounds that it
erroneously awarded de minimis payments. We reverse only the underlying award of
attorney's fees.
The father brought an action against the mother for paternity and to
determine custody, parental responsibility, and child support under chapter 742, Florida
Statutes (2011). Following a trial, the court entered a final judgment establishing the
father's paternity and determining the mother's entitlement to an award of attorney's
fees. The trial court held a hearing on the mother's subsequent motion for attorney's
fees and costs. The transcript of that hearing was not included in the record on appeal.
The trial court entered a written order on the mother's motion, in which it
made specific findings as to the reasonableness of the hourly rates charged by the
mother's attorneys. In calculating the total award, the trial court began with the total
fees sought by the mother's attorneys—$54,397.50 in fees paid to one firm, plus an
additional $32,210.00 in fees paid to a second firm—then made certain reductions.
Based on its review of the attorney fee affidavits,1 the court file, and the parties'
arguments, the trial court determined that fifty percent of the litigation involved time-
1An amended attorney's fees affidavit was introduced into evidence at the
hearing. This affidavit included an itemized list for each attorney and paralegal of the
hours spent and the hourly rate, as well as the fee agreement and a thirty-page
summary of the first firm's timesheets.
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sharing, and after making all of the reductions, it taxed that amount against the father.
The trial court awarded the mother the following attorney's fees and costs: $21,866.67
for the first firm plus $13,384.71 for the second firm.
Absent from the written order are specific findings as to the
reasonableness of the number of hours spent by the mother's attorneys. The father
contends that this omission constitutes reversible error notwithstanding his failure to
supply a transcript of the hearing. The mother concedes that the trial court failed to
make these findings but suggests that it reviewed her amended affidavit—which
included an itemized list of the hourly rate and the number of hours spent by each
attorney—and made certain reductions, thereby implying a finding as to the
reasonableness.
The mother filed a motion for rehearing, requesting the trial court amend
the fee award to include a reasonable payment plan for the payment of the award, as
well as an additional award of interest from the date of entitlement. The trial court held
a hearing and entered an order granting the mother's motion. The order provides for
direct monthly payments of $200 to the mother's current law firm until $22,637.65 has
been paid; payments of $100 to the mother's previous counsel; and, once $5680.97 is
paid in full, payments of $100 to the mother until $8175.05 has been paid.2 The mother
appealed the order, arguing that the trial court erred by only awarding de minimis
payments.
Section 61.16, Florida Statutes (2018), governs the determination of an
award of attorney's fees in dissolution of marriage, support, and child custody cases.
2 The trial court added prejudgment interest.
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See Rosen v. Rosen, 696 So. 2d 697, 701 (Fla. 1997). This court reviews an award of
attorney's fees under that section for abuse of discretion. Wright v. Wright, 965 So. 2d
1168, 1170 (Fla. 2d DCA 2007). An abuse of discretion results when no reasonable
person would take the view adopted by the trial court. Canakaris v. Canakaris, 382 So.
2d 1197, 1203 (Fla. 1980).
The trial court has discretion to establish a regular payment plan for the
attorney's fee award. Lowman v. Lowman, 724 So. 2d 648, 650 (Fla. 2d DCA 1999).
Nevertheless, the trial court must make factual findings to support this specific payment
plan. Rogers v. Rogers, 12 So. 3d 288, 292 (Fla. 2d DCA 2009) (reversing
attorney'sfee award, in part, because the trial court failed to making any "findings that
would support allowing the Husband to pay the attorney's fee award in two installments
over a one-year period"). The repayment period must be reasonable based upon the
parties' respective financial conditions. See, e.g., Hood v. Hood, 535 So. 2d 715, 715
(Fla. 5th DCA 1989) ("The trial court abused its discretion in allowing the husband a
seven[-]year payment period, especially in light of the husband's financial affidavit
reflecting net assets of over $117,000 and a weekly income of over $1,100."); Urbieta v.
Urbieta, 469 So. 2d 930, 931 (Fla. 3d DCA 1985) (finding that the fifty-dollar monthly
repayment "was manifestly erroneous in face of the husband's financial affidavits
reflecting assets of $391,000" as it would take the husband eight years to repay the
remaining $4800 award). Under the current payment structure, it will take 4.7 years to
pay the former attorneys directly, then another 6.8 years to pay the mother.
Although the trial court must make specific findings of fact to support an
attorney's fee award under chapter 61, it can do so either orally or in a written order.
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Arena v. Arena, 103 So. 3d 1044, 1046 (Fla. 2d DCA 2013). The mother bore the
burden of providing a record sufficient to demonstrate reversible error. See Esaw v.
Esaw, 965 So. 2d 1261, 1264 (Fla. 2d DCA 2007) ("The most salient impediment to
meaningful review of the trial court's decision is not the absence of findings, but the
absence of a transcript."). Without a transcript of the hearing on the mother's motion for
rehearing, we cannot say that the trial court abused its discretion by failing to make
sufficient factual findings to support a de minimis payment plan. Cf. Frezza v. Frezza,
216 So. 3d 758, 760 (Fla. 2d DCA 2017) (noting that specific findings to support an
attorney's fee award in a dissolution proceeding "may be made in the written final
judgment or at the hearing" and concluding that "[i]n the absence of a hearing transcript,
we cannot say that the trial court erred"); Esaw, 965 So. 2d at 1264–65 ("The appellant
has the burden of providing a proper record to the reviewing court, and the failure to do
so is 'usually fatal' to the appellant's claims." (quoting Casella v. Casella, 569 So. 2d
848, 849 (Fla. 4th DCA 1990))).
However, an award of attorney's fees that lacks the findings required
under Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), is
not susceptible to the same impediment to appellate review. See Harris v. McKinney,
20 So. 3d 400, 403 (Fla. 2d DCA 2009) ("[T]he absence of the required findings in the
written order renders the order fundamentally erroneous on its face and . . . the lack of
transcript 'does not preclude appellate review.' " (quoting Baratta v. Valley Oak
Homeowners' Ass'n at the Vineyards, 891 So. 2d 1063, 1065 n.4 (Fla. 2d DCA 2004))).
Reversal is required unless the trial court makes specific written findings as to these
Rowe factors. See, e.g., Tullos v. Tullos, 37 So. 3d 355, 357 (Fla. 2d DCA 2010);
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Voronin v. Voronina, 995 So. 2d 1049, 1050 (Fla. 2d DCA 2008); Beck v. Beck, 852 So.
2d 934, 938 (Fla. 2d DCA 2003); cf. Barber v. Goodwin, 880 So. 2d 712, 713 (Fla. 2d
DCA 2004) (reversing in part because the trial court's order contained "no findings
establishing the basis for the specific amount awarded for fees").
The trial court here failed to make written findings as to the reasonable
number of hours expended by the mother's attorneys. Although it is unclear whether
the trial court addressed the reasonableness of the attorney's fees at the hearing on the
mother's motion for rehearing, "it is the established rule in this court that the omission of
the required findings of fact from orders awarding attorney's fees is to be treated
differently from such omissions made in other types of orders." Harris, 20 So. 3d at 406(Davis, J., concurring specially). As a result, we must reverse and remand for the trial
court to make the written findings required under Rowe, compelled as we are by
precedent that dictates the disparate treatment of the issues raised by the father in his
appeal and those raised by the mother in hers. Cf. Harris, 20 So. 3d at 407 (Davis, J.,
concurring specially) ("I agree that we must reverse the award of attorney's fees
because the case law is clear that attorney's fees orders are treated differently and that
the absence of the Rowe findings on the face of the written order currently renders that
order per se reversible. However, I do not agree that the difference between an order
awarding attorney's fees and other types of orders, such as those dealing with alimony
or the equitable distribution of marital assets, justifies this disparate treatment.").
Because the trial court failed to make express, written findings as to the
reasonableness of the number of hours expended by the mother's attorneys, we must
reverse, notwithstanding the father's failure to present us with a hearing transcript. But
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because the mother failed to provide us with the same, we are compelled to affirm the
trial court's order granting the mother's motion for rehearing.
Affirmed in part; reversed in part; remanded.
NORTHCUTT and SLEET, JJ., Concur.
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