Posted by Nydia Streets of Streets Law in Florida Divorce

When a party is owed an equalizing payment under a Florida divorce decree, can that party seek attorneys’ fees and costs under Chp. 61 of the Florida Statutes? According to a recent appellate case, the answer is no: Kotlarz v. Kotlarz, 1D18-4818 (Fla. 1st DCA April 27, 2020).

In 2008 as part of the parties’ equitable distribution order, the court ordered the former husband to pay the former wife an equalizing payment as her share of the marital estate. In 2009, the former wife was awarded a money judgment. Since that time, the former husband has not made the ordered payment. In order to collect on the judgment, the former wife sued the former husband for writs of garnishment and pursued supplementary proceedings to obtain a writ of execution. Because she was spending so much money pursuing relief, she requested that the court award her attorneys’ fees and costs from the former husband under Chp. 61 of the Florida Statutes. The trial court awarded her the fees and the former husband appealed.

The appellate court reversed, reasoning “When the former wife received a money judgment, she became a judgment creditor and was subject to the same remedies available to any other judgment creditor [. . .] Chapter 61 provides for a writ of garnishment under the chapter only for the enforcement of alimony or child support. § 3 61.12, Fla. Stat. The original equalizing payment owed to the former wife was not for alimony or child support. Therefore, her pursuit of a writ of garnishment was not a proceeding under Chapter 61. Likewise, Chapter 61 does not provide for proceedings supplementary to obtain a writ of execution. Therefore, her efforts toward obtaining a writ of execution were not proceedings under Chapter 61. While we empathize with the trial court’s frustration in attempting to get the former husband to comply with its orders over the last ten years, we are compelled to reverse because the Legislature has not authorized attorney’s fees and costs for the former wife’s collection efforts.”

If you need help enforcing your marital settlement agreement or final judgment, contact a Miami family law attorney for a consultation.