Bane v. Bane

• Decision Date: 22 November 2000
• Docket Number: No. SC99-93.,SC99-93.
• Citation: 775 So.2d 938
• Parties: Ben Wilson BANE, Petitioner, v. Consuella Kathleen BANE, Respondent.
• Court: Florida Supreme Court

775 So.2d 938

Ben Wilson BANE, Petitioner, v. Consuella Kathleen BANE, Respondent.

No. SC99-93.

Supreme Court of Florida.

November 22, 2000.

Arnold D. Levine of Levine, Hirsch, Segall & Brennan, P.A., Tampa, Florida, for Petitioner.

David A. Maney and Lorena L. Kiely of Maney, Damsker & Jones, P.A., Tampa, Florida, for Respondent.

PARIENTE, J.

We have for review the decision in Bane v. Bane, 750 So.2d 77 (Fla. 2d DCA 1999), which the district court certified to be in conflict with the opinion in Spano v. Spano, 698 So.2d 324 (Fla. 4th DCA 1997). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The conflict issue presented by this case is whether section 61.16, Florida Statutes (1999), authorizes an award of attorney's fees for proceedings pursuant to a rule 1.540(b) motion¹ to set aside a property settlement agreement that was the product of fraud.

Ben Wilson Bane ("former husband") and Consuella Kathleen Bane ("former wife") entered into a property settlement agreement that was incorporated into a final judgment of dissolution of marriage. Less than three months after she signed the settlement agreement, the former wife filed a rule 1.540(b) motion to vacate the final judgment of dissolution, claiming that the settlement agreement was the product of her former husband's misrepresentation and coercion. See Bane, 750 So.2d at 77-78. After a hearing, the trial court granted the former wife's motion and ordered that the settlement agreement be "VACATED and set aside [and that t]he parties may replead the case." On appeal, the Second District affirmed the trial court. See Bane v. Bane, 701 So.2d 872 (Fla. 2d DCA 1997) (table citation).

The parties then continued with the dissolution proceedings. During the dissolution proceedings, the former wife filed a motion seeking to recover the attorney's fees that she incurred in connection with the motion to set aside the property settlement agreement, including the trial proceedings and appeal. See Bane, 750 So.2d at 78. The trial court granted this motion and awarded the former wife attorney's fees. See id.

On appeal, the Second District held that "chapter 61 authorizes an award of attorney's fees for a proceeding to set aside a property settlement agreement that was the product of one party's fraud." Id. Relying on language from our decision in Rosen v. Rosen, 696 So.2d 697 (Fla.1997), the Second District reasoned that "fees are not precluded for a proceeding to vacate a final judgment of dissolution and property settlement agreement because the attorney's fees provision in chapter 61, Florida Statutes, is to be `liberally—not restrictively—construed.'" Id. (quoting Rosen, 696 So.2d at 700). In addition, the Second District declined to follow the Fourth District's opinion in Spano, 698 So.2d at 324, which held that there was no basis to award fees pursuant to chapter 61, Florida Statutes, for a rule 1.540 attack on a property settlement agreement.² Accordingly, the Second District certified conflict with Spano, but noted that "[e]ven the Fourth District recognized that fees might be warranted in some cases." Bane, 750 So.2d at 78.

Generally, a court may only award attorney's fees when such fees are "expressly provided for by statute, rule, or contract."³Hubbel v. Aetna Cas. & Sur. Co., 758 So.2d 94, 97 (Fla.2000). Chapter 61, entitled "Dissolution of Marriage; Support; Custody," contains such a provision, which authorizes attorney's fees in all actions governed by that chapter. See § 61.16(1); Rosen, 696 So.2d at 699. In particular, section 61.16(1), Florida Statutes, provides in pertinent part:

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney's fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.

(Emphasis supplied.) "The purpose of this section is to ensure that both parties will have a similar ability to obtain competent legal counsel." Rosen, 696 So.2d at 699. As we explained in Rosen, "section 61.16 should be liberally—not restrictively—construed to allow consideration of any factor necessary to provide justice and ensure equity between the parties." Id. at 700.

According to the provisions of section 61.16(1), courts may award fees for "maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings." Despite this seemingly broad language, the Fourth District in Spano relied upon this provision in section 61.16 to reverse an award of fees, concluding that a rule 1.540 proceeding to set aside a property settlement agreement is not a proceeding under chapter 61. 698 So.2d at 327.

We disagree. A rule 1.540 motion to vacate a final judgment is not an independent action, but a motion filed in the underlying proceeding. See DeClaire v. Yohanan, 453 So.2d 375, 378 (Fla.1984). As we explained in DeClaire, when relief from a judgment is sought by a rule 1.540 motion, "the motion is filed in the action in which the judgment was rendered." Id. In contrast, where relief is sought by an independent action, the independent action is not a continuation of the action in which the underlying judgment was entered. See id.

When a court vacates a judgment pursuant to a rule 1.540 motion, the effect of that ruling is to return the case and the parties to the same position that they were in before the court entered the judgment. See Adelhelm v. Dougherty, 129 Fla. 680, 684, 176 So. 775, 777 (1937); Zwakhals v. Senft, 206 So.2d 62, 63 (Fla. 4th DCA 1968); see also 33 Fla. Jur.2d Judgments and Decrees § 356 (1994). In fact, the one exception to the rule of absolute finality is rule 1.540, "which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances." Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla.1986).

Accordingly, when a party files, in the underlying dissolution proceeding, a motion to set aside the final judgment pursuant to rule 1.540(b) based on the fraudulent conduct of a party, we construe that motion to be a proceeding under chapter 61. We distinguish other cases in which courts denied section 61.16 fees where the proceedings were not filed under chapter 61 and did not pertain to enforcement or modification of the final judgment of dissolution. See, e.g., Battista v. Battista, 585 So.2d 459 (Fla. 1st DCA 1991); Robinson v. Swaim, 419 So.2d 414, 415 (Fla. 2d DCA 1982). In Battista, for example, the First District reversed an award of fees under section 61.16 in a separate action for declaratory judgment in which the former husband alleged that he was entitled to rent from his former wife. 585 So.2d at 461. The Battista court premised the denial of fees on its determination that the "petition for declaratory relief was not founded upon the jurisdiction acquired by the court over the parties in the divorce proceedings" and that section 61.16 "does not apply in the absence of a marital relationship unless the matter pertains to an enforcement or modification of the final decree." Id. Similarly, in Robinson, the Second District reversed the award of fees under section 61.16 in the former husband's separate action seeking to enjoin the former wife from filing a suit for alimony in North Carolina because this second action did not concern the enforcement or modification of the prior decree and the original judgment of dissolution did not provide for attorneys' fees. 419 So.2d at 415. Cf. Fortner v. Fortner, 631 So.2d 327, 328 (Fla. 2d DCA 1994) (award of fees was proper because even though bankruptcy proceeding was a separate action, it constituted an "enforcement" proceeding "under" chapter 61); Kass v. Kass, 560 So.2d 293, 294 (Fla. 4th DCA 1990) (non-dissolution lawsuits were "so intertwined with the dissolution litigation" that they were "part and parcel of the domestic strife" and therefore the award of chapter 61 fees was not erroneous).⁴

In this case, the former wife's rule 1.540 motion was properly filed in the dissolution action based on the jurisdiction acquired over the parties in the dissolution proceeding. Although the dissolution proceeding was final when the motion was filed, at the time that the trial court granted the motion, the court ordered that the settlement agreement be "VACATED and set aside [and that t]he parties may replead the case." Accordingly, once the trial court set aside the settlement agreement, the agreement itself did not preclude the court from awarding fees, and fees were not otherwise precluded under section 61.16 as long as that award complied with the considerations enunciated by this Court in Rosen,⁵ We therefore approve the Second District's decision in Bane.⁶ Our approval of Bane does not necessarily lead to the conclusion that we must disagree with the result in Spano. In Bane, the trial court set aside the property settlement agreement and vacated the final judgment because of the improper actions of the former husband. In contrast, in Spano, the former wife was not successful in her motion to set aside the property settlement agreement, and therefore the former wife's rights were governed by the property settlement agreement. In fact, the Spano court determined that the fee provision in the settlement agreement would not entitle the former wife to fees. 698 So.2d at 325. Thus, because the property settlement agreement governed the former wife's rights to fees, the attorney's fees provisions of section 61.16 was not applicable.⁷

Our analysis is consistent with the purpose of chapter 61. An award of fees despite the existence of a binding settlement agreement would be inconsistent with one of the primary purposes of chapter 61, which is "[t]o promote the amicable settlement of disputes." § 61.001(b), Fla. Stat. (1999). We agree with Judge Farmer's observations in Spano:

The policy of

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