Bolliger v. Fries

• Decision Date: 31 July 2020
• Docket Number: Case No. 2D19-2587
• Citation: 310 So.3d 1010
• Parties: Eugene BOLLIGER, Appellant, v. Barbara J. FRIES, Appellee.
• Court: Florida District Court of Appeals

310 So.3d 1010

Eugene BOLLIGER, Appellant,

v.Barbara J. FRIES, Appellee.

Case No. 2D19-2587

District Court of Appeal of Florida, Second District.

Opinion filed July 31, 2020.

Katheryn Elizabeth Smith Calvo of Calvo & Calvo, Attorneys at Law, Fort Myers, for Appellant.

No appearance for Appellee.

LaROSE, Judge.

Eugene Bolliger appeals the amended final judgment dissolving his second marriage to Barbara Fries. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We reverse the portion of the judgment denying Mr. Bolliger's request for attorney's fees because the trial court failed to make any findings to support that ruling.¹

Ms. Fries filed for divorce in September 2016. Mr. Bolliger counterpetitioned, seeking attorney's fees pursuant to section 61.16, Florida Statutes (2016). The trial court conducted a two-day final hearing in 2018. At the conclusion of the hearing, the trial court took the matter under advisement. After nearly a year, the trial court entered a written final judgment. Paragraph twenty-five of the judgment simply states that "[e]ach party will be responsible for paying their respective attorney[']s fees and costs."

The trial court's disposition of the fee issue was inadequate. Section 61.16 authorizes an award of attorney's fees, suit money, and costs "after considering the financial resources of both parties." § 61.16(1). After all, "[t]he purpose of this section is to ensure that both parties will have a similar ability to obtain competent legal counsel" in family law proceedings. Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997) (citing Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980) ).

Significantly, section 61.16(1) "expressly requires the court to make findings regarding the parties' respective financial needs and abilities to pay." Sumlar v. Sumlar, 827 So. 2d 1079, 1084 (Fla. 1st DCA 2002) (citing Watterson v. Watterson, 353 So. 2d 1185 (Fla. 1st DCA 1977) ); see also Rogers v. Rogers, 12 So. 3d 288, 292 (Fla. 2d DCA 2009) ("[A] trial court cannot decide the issue of attorney's fees without findings as to one spouse's ability to pay fees and the other spouse's need to have fees paid." (alteration in original) (quoting Perrin v. Perrin, 795 So. 2d 1023, 1024 (Fla. 2d DCA 2001) )).

Additionally, the trial court may consider a number of other factors, including "the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation." Rosen, 696 So. 2d at 700. No such considerations are reflected in the final judgment.

Furthermore, "the trial court made no oral findings of the parties' financial positions or the Rosen factors at the trial," that would otherwise allow us to review the propriety of its denial of Mr. Bolliger's request for attorney's fees. See Allen v. Juul, 278 So. 3d 783, 785 (Fla. 2d DCA 2019) ; see also Perez v. Perez, 100 So. 3d 769, 771 (Fla. 2d DCA 2012) ("[T]he trial court must make specific factual findings-either at the hearing or in the written judgment-supporting its determination of entitlement to an award of attorney's fees."). Thus, the trial court's simple disposition of Mr. Bolliger's attorney's fees request requires reversal. See Allen, 278 So. 3d at 785 ("To adhere to the statute's purpose, '[the trial] court cannot deny attorneys' fees and costs under section 61.16 without making any findings as to the parties' relative financial needs and abilities.' " (quoting Phillips v. Phillips, 264 So. 3d 1129, 1131 (Fla. 2d DCA 2019) )).

We reverse the portion of the final judgment denying Mr. Bolliger's request for attorney's fees and remand for the trial court to make the relevant findings to support its decision. "If necessary, the court may take additional evidence on this issue." Richards v. State, 221 So. 3d 714, 715 (Fla. 2d DCA 2017) ; see Perez, 100 So. 3d at 773 ("[W]e reverse the order awarding...