Dralus v. Dralus

• Decision Date: 24 September 1993
• Docket Number: No. 92-00057,92-00057
• Citation: 627 So.2d 505
• Parties: 18 Fla. L. Weekly D2110 Joseph Richard DRALUS, Appellant/Cross-Appellee, v. Bonnie Byer DRALUS, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 505

627 So.2d 505

18 Fla. L. Weekly D2110

Joseph Richard DRALUS, Appellant/Cross-Appellee, v. Bonnie Byer DRALUS, Appellee/Cross-Appellant.

No. 92-00057.

District Court of Appeal of Florida Second District.

Sept. 24, 1993.

Kevin P. Smith of Davis, Persson, Smith & Darnell, Sarasota, for appellant/cross-appellee.

Mike Piscitelli of Cummings, Lawrence & Vezina, P.A., Tallahassee, for appellee/cross-appellant.

PATTERSON, Judge.

In this dissolution of marriage proceeding, the husband appeals from a postjudgment order which resolves the division of the parties' marital assets. We find no merit in his assertions and affirm the order except as it applies to the wife's attorney's fees.

The wife has cross-appealed contending that the trial court erred in failing to require the husband to pay all or a larger percentage of her attorney's fees. She focuses on the issue that the trial court failed to take into account that the fees she was charged were greatly increased by the husband's unjustified lack of cooperation and intentional destruction of various records in his possession. We agree that it was an abuse of discretion for the trial judge to decline to fully address this issue, and reverse for further evidentiary proceedings.

Neither the husband nor the wife has sought rehearing. However, Mr. Larry Coleman and his law firm, Mulock, Coleman & Thompson, P.A., who have an interest in the issue of attorney's fees charged to the wife, have petitioned to intervene as interested parties for the purpose of rehearing. Both the husband and the wife have responded to Coleman's petition and motion for rehearing. The wife urges that we adhere to our original opinion. The husband's position is neutral. We grant the Coleman motion for rehearing to the extent of substituting this opinion for our original opinion.

At the onset, we must note that we are alarmed by the amount of the fees billed and collected by the wife's attorney. ¹ In the arena of marital law, this is a case of very modest financial proportions. The parties' marriage lasted twenty years and produced one minor child who was seventeen years of age at the time of the final hearing. The husband is a salesperson employed by Sears and the wife was working part-time in a flower shop. The net value of their marital assets was $109,201.00, the vast majority of which is comprised of the equity in the marital home and the husband's future pension benefits. The case presented no serious financial issues and no new or unique issues of law. No exceptional results were achieved. The husband made a weak attempt to obtain primary residential custody of the minor son and bickered over the division of personal property accumulated during the marriage. These conflicts produced an abundant crop of pleadings and contempt proceedings focused at the husband. However, the discovery was neither extensive nor complex and the basic conflicts were resolved by stipulations and the uncontested opinion of a certified public accountant the wife retained. The trial consumed one-half day.

Against this backdrop, the wife's attorney billed the wife $10,051.50 in attorney's fees and $2,510.82 in costs for the case through trial. He billed an additional $8,431.00 in fees and $298.70 in costs for the postjudgment proceedings on property distribution and allocation of fees and costs for a In the posttrial proceedings, the wife sought to shift the awesome burden of these fees onto the husband. In support of his charges, the wife's attorney submitted three affidavits to the court which detail costs expended and hours worked. ² The first affidavit represents charges through trial. The second affidavit shows the charges for the posttrial proceedings. The third affidavit is the wife's attorney's estimate of the fees charged and costs incurred which he believed were unnecessary and resulted from the husband's lack of cooperation and "stonewalling." This amount came to a total of $3,417.70. ³ Trial counsel then stipulated that expert testimony on the issue of fees would not be necessary. The wife's attorney made an unsworn statement to the court explaining the affidavits. The husband's attorney made no objection to the affidavits, made no attempt to question the wife's attorney under oath and, in fact, stated, "I don't have any quarrel with the amount of fees." The trial court made no Rowe ⁴ findings nor did it request evidence upon which such findings could be based. It made no specific ruling on the issues presented by the third affidavit ⁵ nor did it make a determination of fault on the part of the husband. The court did express its dismay as to the amount of the fees in relation to the value of the case, stating:

grand total of $21,292.02. In contrast, the total net value of marital assets, principally the equity in the marital home, distributed to the wife was $54,600.00. Thus, the wife's attorney's fees and costs represent 39% of her net worth accumulated over the life of the marriage. To pay part of this obligation, the wife was forced to sell her jewelry and obtain a $16,000.00 commercial loan.

But what we have done in this case, just taking Mr. Coleman's fees, and I'm sure Mr. Dralus has had fees, we've taken assets, total assets of a hundred and nine thousand dollars, and I would guess that at least thirty-five percent of their total assets have gone to pay attorneys to divide that hundred and nine thousand dollars.

I'm not proud of a system that allows that to happen of [sic] peoples [sic] lives, but it's happened.

He then ordered that the husband pay one-third of the fees.

From the record before us, it appears that the judicial process in this case has failed, as far as the attorney's fee issue is concerned. At least part of the blame for this unfortunate circumstance falls upon the husband's trial counsel. Knowing full well that the husband could be required to pay all or a substantial part of the wife's fees, the husband's counsel failed to object to the amount of fees or to require Mr. Coleman to produce proper proof of the reasonableness of the fees charged. In fact, he stipulated to an amount which would raise grave questions in the mind of any reasonable person. Thus, the record is inadequate to enable this court to fully resolve the attorney's fee issue.

Mr. Coleman argues that it is now too late to explore the reasonableness of his fee. He asserts that the stipulation at the trial level, followed by the trial court's award without the benefit of Rowe findings, together with the failure of the wife to question reasonableness in this appeal, deprives us of jurisdiction to address the matter. In support of his position, he cites numerous cases in which appellate courts have declined to address issues which they determine not to be properly before them. There is a distinct difference, however, between declining to consider a matter and lacking the authority Prudence dictates that issues ... should normally be considered at the trial level to assure that such issues are not later deemed waived. Once this Court has jurisdiction, however, it may at its discretion, consider any issue affecting the case.

to do so. In considering the constitutionality of a statute applied retroactively, our supreme court in Cantor v. Davis, 489 So.2d 18, 20 (Fla.1986), explained its authority to address issues not raised in the trial court:

(Emphasis supplied.) Although such power of an appellate court should be used sparingly, it is clear that it exists. Nonetheless, in this case, it is not necessary to rely solely on our discretionary authority since the wife raised the general issue of attorney's fees in her cross-appeal. Necessarily entwined in the issue of what percentage of fees the husband should pay is the reasonableness of the fees charged. The husband cannot be required to pay all or part of an unreasonable fee.

It is generally accepted that a court in a dissolution proceeding does not have the authority to interfere with the contractual obligation of a client to pay his or her lawyer. An exception to that rule occurs when, as here, the lawyer seeks to impose a charging lien in the dissolution case. See Lochner v. Monaco, Cardillo & Keith, P.A., 551 So.2d 581 (Fla. 2d DCA 1989); Conroy v. Conroy, 370 So.2d 1188 (Fla. 2d DCA 1979), cert. denied, 381 So.2d 765 (Fla.1980). ⁶ Mr. Coleman seeks to impose a charging lien on the wife's remaining assets for the unpaid balance of his fee. He has thus submitted for the court's determination the issue of what, if anything, his client should pay him. ⁷

We, therefore, reverse the portion of the order relating to the wife's attorney's fees. We do not pass on the reasonableness of Mr. Coleman's fee, since it is within the province of the trial court to determine such issue in its reconsideration of who should pay all or part of those fees. Thus, we remand with the following instructions.

(1) On the motion of any party, or upon the court's own motion, the court shall hold an evidentiary hearing on the issue of Mr. Coleman's charging lien and the reasonable amount of the total attorney's fee to which (2) In the event the amount paid thus far to Mr. Coleman is more than the amount the court determines to be reasonable, the court shall order a refund of the excess, and the wife will be discharged from further obligation on such attorney's fees. ⁹

                Mr. Coleman is entitled to be paid by the wife.  In such regard, the trial court shall make the findings Rowe requires. 8  The trial court should consider whether an impermissible method of "unit billing" has occurred and if the time charged is limited to only that which should reasonably be devoted to a particular task.  See The Florida Bar v. Richardson, 574 So.2d 60 (Fla.1990), cert. denied, --- U.S. ----, 112 S.Ct. 57, 116 L.Ed.2d 33 (1991)
                

(3) After determining a reasonable fee, the court shall order the husband to pay all or a portion of that fee. In such regard, the trial court must consider...