Posted by Nydia Streets of Streets Law in Florida Divorce

The ability to request attorney’s fees extends beyond the trial level in a Florida family law case into the appellate level. A party can request both temporary and permanent attorney’s fees in a Florida appellate case, and requesting or failing to request one does not foreclose the other. This was an issue in the case Palmateer v. Palmateer, 2D19-4330 (Fla. 2d DCA March 10, 2021).

The trial court entered a final judgment of divorce in 2017. The former husband appealed the judgment and the former wife cross-appealed. While that appeal was pending, the former wife filed a motion for temporary attorney’s fees. The motion made it clear the fees were for her lawyer to work on the appeal. She alleged a disparity in income. The trial court granted the former wife $9,000.00 in attorney’s fees to be paid to the former wife’s counsel by the former husband. The former husband paid this temporary fee award and did not appeal or otherwise challenge the order.

Later, the former wife filed in the appellate court a motion for final appellate fees. Noting the motion was not timely filed by the former wife, the appellate court dismissed the former wife’s motion. After the appellate court decided the appeal of the divorce decree, the former husband filed in the trial court a motion for the former wife to return the $9,000 in temporary fees previously awarded, reasoning that because the former wife’s motion for final fees on the appellate level was stricken, the temporary fees should be returned to him. The trial court agreed with the former husband and granted his motion. The former wife appealed.

The appellate court reversed the order, holding “The Former Husband has simply cited no authority—in the trial court or on appeal—to support his argument that a timely rule 9.400(b) motion is necessary to preserve or later confirm an already granted rule 9.600(c) award of temporary appellate attorney fees, and the plain language of the statute and rules at issue here provides no such support. Furthermore, we conclude that it would be inequitable to require the Former Wife to repay the Former Husband a fee award based on her proven need and his proven ability to pay solely due to a perceived procedural error, especially in light of the fact that the Former Husband never challenged the award on substantive grounds.”

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