Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

One party to a Florida family law case can be ordered to pay the other party’s attorney’s fees and costs under certain circumstances. One circumstance may be bad conduct and the other may be based on a difference in income between the two parties. Either way, a court must make specific findings concerning the amount of fees to be paid. This was an issue in the case Marcellus v. Marcellus, 4D20-1671 (Fla. 4th DCA October 27, 2021).

The parties were divorced by final judgment in 2010. A few years later, the former wife re-opened the case based on the former husband’s failure to comply with certain terms of the judgment. As a result of the former husband’s conduct, a Florida Bar complaint was filed against him which resulted in his suspension from the practice of law. The trial court awarded the former wife over $250,000 in attorney’s fees as well as pre-judgment interest in excess of $22,000 after a non-evidentiary hearing. The trial court stated it was adopting the findings made in the Florida Bar matter, but the court did not make any findings concerning the reasonableness of the hours spent or the former wife’s attorney’s hourly rate. The former husband appealed arguing it was error for the court to award this amount without making these findings or holding an evidentiary hearing.

The appellate court agreed with the former husband, noting “A trial court’s award of attorney’s fees under the inequitable conduct doctrine ‘must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees.’ Moakley v. Smallwood, 826 So. 2d 221, 227 (Fla. 2002). In addition, the fee award amount must be directly related to the fees incurred by the opposing party resulting from the bad faith conduct. [. . . ] Accordingly, we affirm the trial court’s determination of entitlement to attorney’s fees, reverse as to the amount, and remand for the trial court to conduct an evidentiary hearing and make specific findings as to the hourly rate and number of hours reasonably expended.”

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