YOUR SUPPORT SOLUTION, P.A. d/b/a SUPPORT SOLUTIONS v. BELKYS OVALLES

Third District Court of Appeal
State of Florida
Opinion filed July 27, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1953
Lower Tribunal No. 17-10876
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Your Support Solution, P.A. d/b/a Support Solutions,
Appellant,
vs.
Belkys Ovalles,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, David
Young, Judge.
Your Support Solution, P.A. d/b/a Support Solutions, and Lawrence J.
Shapiro, for appellant.
Forrest Sygman, P.A., and Forrest Sygman and Marlene Collazo, for
appellee.
Before LOGUE, LINDSEY, and LOBREE, JJ.
LINDSEY, J.
Appellant Your Support Solution, P.A. d/b/a Support Solutions appeals
from an order denying its motion to enforce a charging and retaining lien
against its former client, Appellee Belkys Ovalles. The order determines that
Support Solutions’ Contingency Fee Agreement is unenforceable. We
reverse because the Florida Rules of Professional Conduct do not prohibit
contingency fee agreements for legal representation to recover post-
judgment child support arrearages.
I. BACKGROUND
In May 2017, Ovalles filed a petition to determine paternity, which
sought child support from the putative father. An agreed final judgment of
paternity was entered in July 2018. Pursuant to the final judgment, the father
agreed to pay monthly child support in the amount of $750. Support
Solutions did not represent Ovalles during this time, and it was not involved
in securing the amount of child support.
Ovalles hired Support Solutions in May 2020 to initiate post-judgment
collection proceedings to recover past due child support. Ovalles signed a
written Contingency Fee Agreement and agreed to pay Support Solutions a
set percentage of any amounts recovered. A few months later, Support
Solutions helped secure a Final Judgment of Support Arrearages, which
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determined Ovalles was due eight months of past due child support, from
March 2020 to October 2020.
After obtaining the Final Judgment of Support Arrearages, Ovalles
terminated her attorney-client relationship with Support Solutions and hired
Forrest Sygman, P.A. Support Solutions filed a notice of charging and
retaining lien and moved to enforce the lien. In response, Ovalles filed a
request for judicial notice, attaching Florida Rule of Professional Conduct 4-
1.5, which concerns Fees and Costs for Legal Services. Ovalles later filed
a Memorandum of Law Regarding Enforceability of Contingency Fee
Agreements in which she argued that the Contingency Fee Agreement was
unenforceable and void pursuant to Rule 4-1.5(f)(3)(A).
Following a hearing, the trial court issued an order denying Support
Solutions’ motion to enforce the charging and retaining lien. The court
concluded that Rule 4-1.5(f)(3)(A) prohibited contingency fees as against
public policy in this case. Support Solutions timely appealed.
II. ANALYSIS
The issue before us is whether a contingency fee agreement for legal
representation to recover post-judgment child support arrearages is
enforceable. This case involves the interpretation and application of the
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Rules of Professional Conduct, which is a pure legal issue subject to de novo
review. Young v. Achenbauch, 136 So. 3d 575, 580 n.3 (Fla. 2014).
Rule 4-1.5(f) governs contingency fees. In general, contingency fees
are permitted except as prohibited by 4-1.5(f)(3) or by law. Rule 4-1.5(f)(3)
provides in pertinent part as follows:
(3) A lawyer must not enter into an
arrangement for, charge, or collect:
(A) any fee in a domestic relations matter, the
payment or amount of which is contingent
on the securing of a divorce or on the
amount of alimony or support, or property
settlement in lieu thereof . . . .
Ovalles maintains that the Contingency Fee Agreement in this case is
unenforceable pursuant to Rule 4-1.5(f)(3)(A). We disagree. As set forth by
the plain language of the Rule, contingency fees are not permitted in
domestic relations matters if contingent “on the amount of . . . support[.]” 1
Here, Support Solutions had nothing to do with establishing the amount of
support, which is set forth in the July 2018 final judgment of paternity.
1
Contingency fees are likewise not permitted if contingent on securing a
divorce. Though this is not a divorce action, Ovalles and the trial court both
rely on King v. Young, Berkman, Berman & Karpf, P.A., 709 So. 2d 572, 573
(Fla. 3d DCA 1998). In King, this Court invalidated a fee provision because
it improperly included a “bonus fee” based on results obtained in a dissolution
action. King is inapplicable to the instant case, which involves a contingency
fee agreement to recover child support arrearages in a post-judgment
paternity action.
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Support Solutions was hired to recover past-due amounts nearly two years
after the final judgment established the amount of support.
Consistent with the clear language of Rule 4-1.5(f)(3)(A), the Comment
to the Rule explains as follows:
Subdivision (f)(3)(A) prohibits a lawyer from
charging a contingent fee in a domestic relations
matter when payment is contingent upon the
securing of a divorce or upon the amount of alimony
or support or property settlement to be obtained. This
provision does not preclude a contract for a
contingent fee for legal representation in connection
with the recovery of post-judgment balances due
under support, alimony, or other financial orders
because such contracts do not implicate the same
policy concerns.
(Emphasis added).
Because the plain language of Rule 4-1.5(f)(3)(A) does not prohibit a
contingency fee to recover post-judgment child support arrearages, the
Contingency Fee Agreement in this case is enforceable. We therefore
reverse and remand for further proceedings. 2
Reversed and remanded.
2
The only issue before us is whether the Contingency Fee Agreement is
enforceable. We do not address the amount of fees, which will be
determined below.
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Your Support Solution, P.A., etc. v. Belkys Ovalles
Case No. 3D21-1953
LOGUE, J., concurring.
I concur in the holding that contingency fees are not per se prohibited
to collect post-judgment balances, which I understand as arrearages, due
under support, alimony, or other financial orders where such fees do not
implicate the general policy concerns behind the general prohibition on
contingency fees in domestic relation cases. I write only to note that Your
Support Solution, P.A. obtained a judgment of $6,000, collected $1,085.71,
and requested fees in the area of $25,370 under the contract at issue. If
these fees are recognized as a lien against future payments, the support
payments of $750 a month will be paid to the attorney rather than the child
for over the next two years, if not paid by another source. Because the trial
court did not do so, we do not reach more specific issues relating to the use
of contingency fees to collect post-judgment balances due under support,
alimony, or other financial orders. We leave those issues to be addressed by
the trial court in the first instance.
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