Posted by Nydia Streets of Streets Law in Florida Divorce
There is an issue brewing in Florida family law cases as it relates to the award of attorneys’ fees and costs in a Florida divorce. The case Allen v. Juul, 2D17-2965 Allen v. Juul (Fla. 2d DCA August 9, 2019) certifies conflict with another Florida appellate court as to the requirement that “the trial court's error of failing to make statutorily required factual findings in chapter 61 proceedings must first be raised in the trial court by way of motion for rehearing in order to be preserved for appellate review.” Certifying conflict means the Florida Supreme Court may weigh in and make a final decision as to conflicting decisions between Florida appellate courts.
In this case, the former wife appealed the trial court’s denial of her request for attorneys’ fees and costs in her divorce. The former wife specifically took issue with the trial court’s failure to make statutorily required findings to decide if attorneys’ fees and costs should be awarded. The former husband argued the former wife waived this argument because she did not raise it in her motion for rehearing. Usually, under Florida law, a party must raise an error in a motion for rehearing before they complain about it to an appellate court. This preserves judicial resources in that the trial court has a chance to fix an issue before it is appealed, thereby possibly saving time and effort.
The appellate court agreed with the former wife and found it was not necessary for her to raise the issue in a motion for rehearing to preserve her right to appeal. “Here, the trial court made no oral findings of the parties' financial positions or the Rosen factors at the trial. [. . .] The trial court had previously determined in the judgment that Former Wife's claim for return of cash deposits was frivolous. Still, the trial court made no factual findings regarding the parties' financial positions or the grounds supporting its denial of all of Former Wife's requested attorney's fees. Moreover, there is no indication that the trial court ever considered the parties' respective need for attorney's fees and ability to pay.”
Sometimes, Florida family law can be a minefield of procedural issues that can trip litigants up who are not aware of rules. This is why it is important to speak with a Miami divorce lawyer about your case. Schedule a consultation to go over your best options in moving forward.