Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Can attorney’s fees be awarded in a Florida family law appeal case based on a disparity in income between the parties? Generally, an appellate court has the authority to award temporary fees when a motion is filed under the Florida Rules of Appellate Procedure, and a trial court also has the authority to award these fees. This was an issue in the case Finch v. Cribbs, 1D18-3855 (Fla. 1st DCA November 2, 2022).
As part of their divorce, the former husband was ordered to pay certain amounts to the former wife. When he failed to pay, the former wife sought to have him held in contempt, and he was sanctioned attorney’s fees and costs payable to the former wife. The appellate court upheld this order. After the former wife submitted her answer brief in the appeal, she filed a motion for for appellate attorney’s fees based on the disparity in incomes between the parties. The former husband sought clarification or rehearing after the appellate court affirmed the matter appealed, but remanded to the trial court for consideration of the former wife’s temporary fee claim. The former husband asked “Why did we remand with a statutory reference (section 61.16(1), Florida Statutes) to the continuing jurisdiction of a trial court to award temporary appellate fees, even though our affirmance brought the appeal to a close?” The appellate court denied rehearing but granted clarification.
In its clarification opinion, the court went into the history of jurisdiction between the courts in awarding fees. It explained “If a spouse or former spouse has a need for this court to award temporary fees, she can say so in a motion filed pursuant to Florida Rule of Appellate Procedure 9.400(b). Such a motion, however, is not a prevailing-party fee motion; it is a motion seeking our intervention on an interim basis to aid the spouse in acquiring (or keeping) the aid of capable appellate counsel. We cannot think of a reason for why such a motion should just sit quietly on our docket while the appeal progresses to disposition, so assuming that the movant is truly in need, he or she should file the motion early and flag the motion as one requiring the court’s immediate consideration. The motion also needs to be more than just a bare-bones, pro forma one; it should explain the nature and extent of the need, include evidence of the amount of the reasonable fee charged by or already paid to counsel, and address the parties’ respective financial abilities.”
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