Posted by Nydia Streets of Streets Law in Florida Divorce

Many Florida marital settlement agreements contain an attorney’s fee provision which allows a party who has to enforce the agreement to collect attorney’s fees from the party who is in violation of the agreement. Florida law introduced a statutory provision not long ago which makes contractual fee provisions reciprocal - that is if the party who is seeking fees loses, the other party could be awarded attorney’s fees. This issue was recently examined by the Florida Supreme Court in the case Levy v. Levy, SC20-1195 (Fla. October 7, 2021).

The parties to this case were previously divorced after the court entered a final judgment ratifying a property settlement agreement reached between them. The property settlement agreement contained the following clause: “13. ENFORCEMENT. In the event that either party should take legal action against the other by reason of the other’s failure to abide by this Agreement, the party who is found to be in violation of this Agreement shall pay to the other party who prevails in said action, the prevailing party’s reasonable expenses incurred in the enforcement of this Agreement, said expenses to include, but not be limited to, reasonable attorney’s fees . . . .”

The former husband filed a motion to compel the former wife’s compliance with the agreement. In the motion, he requested that the former wife pay him attorney’s fees based on the above-mentioned clause. The former wife responded by filing a motion requesting fees for having to defend against the motion, relying on the same clause of the agreement, as well as Florida Statute 57.105(7) which states “If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.”

The trial court held a hearing and the former husband’s motion was eventually denied. The former wife’s request for attorney’s fees was also denied after the court determined the relief encompassed in the attorney’s fee clause of the parties’ agreement did not contemplate the type of relief sought by the former wife and only contemplated assessment of fees against ‘the party who is found to be in violation of th[e] Agreement.’ Both parties appealed to the Third District Court of Appeal which reversed as to the denial of fees to the former wife. The former husband then sought discretionary review before the Florida Supreme Court asserting a conflict between district court case law on the applicability of Florida Statute 57.105(7) to the type of fee clause contained in the parties’ agreement.

The Florida Supreme Court first explained what type of fee agreements are encompassed by Florida Statute 57.105(7). It stated “Indeed, though addressing a different issue, we have recently characterized the type of provision to which the statute applies as a ‘unilateral’ attorney’s fee provision. Ham, 308 So. 3d at 948-49. Where a unilateral provision is involved, the statute transforms the one-sided provision into a reciprocal provision. In this way, the statute fulfills its purpose, which, we have explained, is ‘to help level the playing field when a contract contains a unilateral attorney’s fee provision.’ Id. at 949.”

The court held “The attorney’s fee provision in this case, however, is not unilateral. The provision does not confer the right to fees on one identifiable contracting party to the exclusion of the other party. Rather, it entitles ‘either party’ to an award of attorney’s fees upon demonstrating that the other party violated the [property settlement agreement]. Thus, the provision grants both parties precisely the same contractual right to attorney’s fees. Put differently, neither party has a greater right to attorney’s fees than the other; nor is one party favored over the other. To find that section 57.105(7) applies here would be to confer a right on the former wife that neither party had under the contract, namely the right to fees absent proof of a violation of the [property settlement agreement].”

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