Posted by Nydia Streets of Streets Law in Florida Divorce

When parties “misbehave” in Florida family law cases, a court may have grounds to sanction those parties. The sanctions can include payment of the opposing party’s attorney’s fees and costs. Before this sanction can be imposed, a party is entitled to notice and an opportunity to be heard. This was an issue in the case Toth v. Miller, 2D20-863 (Fla. 2d DCA November 12, 2021).

In this divorce case, the parties were apparently involved in heavy post-final judgment litigation. During a portion of that litigation, the former wife was awarded attorney’s fees and costs based on the former husband’s alleged inequitable conduct. Without holding an evidentiary hearing on this matter, the trial court entered an order awarding the former wife the fees and holding that it was due to the former husband’s misconduct in litigation. The former husband appealed.

The appellate court reversed on this issue, holding “A trial court has inherent authority to assess fees based on the inequitable conduct of a party, but it must provide due process before doing so. Moakley v. Smallwood, 826 So. 2d 221, 226–27 (Fla. 2002). This includes ‘notice and an opportunity to be heard— including the opportunity to present witnesses and other evidence.’ Id. The record here does not show that [the former husband] received due process on this issue. The trial court entered an order declaring [the former wife’s] entitlement to fees as a sanction following the underlying dissolution trial in 2015. But it did not first hold a separate evidentiary hearing on the matter. [The former wife] contends that the issue was heard in full as part of the trial, but the record refutes that assertion.”

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