Posted by Nydia Streets of Streets Law in Florida Divorce

Attorneys’ fees and costs can be ordered to be paid by the higher-earning party in a Florida family law case, and this includes fees that are incurred in appealing orders. The analysis that is required to make a determination of who should pay fees and how much is the same as fees awarded on the trial level. In the case Stewart v. Stewart, 1D19-0016 (Fla. 1st DCA February 3, 2020), the former husband appealed an order making him fully responsible for all of the former wife’s appellate fees.

After the trial court entered a final judgment of dissolution of the parties’ short-term marriage, the former husband appealed the equitable distribution provisions of the judgment. That order was was reversed in part, and the former husband was ordered to pay the former wife’s appellate fees in defending that proceeding based on need and ability to pay. The case was remanded to the trial court to make a determination as to how much in fees were to be awarded to the former wife.

After a hearing, the trial court awarded the former wife 100% of her fees based on the former husband’s ownership of an airplane and an investment account. The former husband appealed. The appellate court agreed and reversed, noting the trial court failed to consider that these assets had been equitably distributed and that the former husband would be required to pay over $11,000 to the former wife as an equalizing payment from the investment account. The trial court made no findings about the former husband’s sources of income and focused only on his assets.

The court held “Because the order on appeal requires [the former husband] to pay all [the former wife’s] appellate attorney's fees based only on the court's finding that [the former husband] has the ability to pay if he liquidates certain equitably distributed assets, the order granting [the former wife’s] appellate attorney's fees in full is reversed. The issue of [the former wife’s] appellate attorney's fees incurred in her defense of the first appeal is remanded to the trial court for consideration of the parties' relative financial resources, including their financial situations after the equitable distribution. See § 61.16(1), Fla. Stat. If the trial court determines that [the former wife] demonstrates a need for assistance to compensate her appellate counsel so that the parties' ability to obtain competent counsel is similar, the trial court shall then determine if [the former husband] has the ability to pay all or any portion of [the former wife’s] appellate attorney's fees based on their respective financial resources.”

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