Herce v. Maines
| Decision Date | 12 March 2021 |
| Docket Number | Case No. 2D19-3174 |
| Citation | 317 So.3d 1211 |
| Court | Florida District Court of Appeals |
| Parties | Robert A. HERCE, Appellant, v. Frances MAINES f/k/a Frances M. Herce, Appellee. |
Robert A. Herce, pro se.
Ellen E. Ware and Bridget Remington of Ware Law Group, Tampa, for Appellee.
Robert A. Herce (the Former Husband) appeals a final order awarding Frances Maines f/k/a Frances M. Herce (the Former Wife) $34,292.47 in attorney's fees and costs. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). The trial court exceeded its limited role in reviewing the corrected report and recommendation of the general magistrate (GM). Thus, we reverse.
The parties divorced in 2005. The final judgment of dissolution ordered the Former Husband to pay $3500 a month in alimony and obtain life insurance to secure that obligation. In a 2008 contempt order, the trial court directed the Former Husband to provide the Former Wife annual written proof that he maintained a life insurance policy for at least $150,000. The Former Wife moved for contempt in 2013 and 2014 based on the Former Husband's failure to pay alimony and to send proof of insurance. The Former Husband complied with his alimony obligation; the insurance dispute continued.
On March 31, 2014, the Former Husband sent the Former Wife a letter from his life insurance company stating that she was the beneficiary of a $150,000 policy, or entire policy proceeds, if less. For her part, the Former Wife issued a subpoena to the life insurance company, requesting the Former Husband's life insurance file. She received the file on April 3, 2014. The file verified that the Former Husband had more than $150,000 in unencumbered insurance available on his $250,000 policy. Yet, a contempt hearing proceeded for the Former Husband's alleged failure to provide annual written proof of the insurance coverage.
The GM found the Former Husband in contempt for violating the 2008 contempt order. The GM found there was no need for a purge because the Former Husband provided the insurance information before the hearing. Judge Laurel M. Lee, in reviewing the GM's report and recommendation, concluded that the Former Husband complied with the 2008 contempt order before the hearing. Consequently, he could not be subject to contempt. Judge Lee dismissed the Former Wife's contempt motion as moot in June 2015. On the Former Wife's motion for rehearing, Judge Lee reserved jurisdiction on the issue of attorney's fees. Judge Lee rejected the Former Wife's claim that the Former Husband failed to provide sufficient proof of life insurance coverage. The Former Wife did not appeal.
The GM held a hearing on attorney's fees. The Former Wife requested fees under section 61.16, Florida Statutes (2017). The parties stipulated that the Former Husband had the ability to pay and the Former Wife had a need for fees. The GM initially found: (Footnote omitted). In a corrected report and recommendation, the GM found that:
The Former Husband provided proof that life insurance was unencumbered prior to a hearing on the Former Wife's motion for contempt. Additionally[,] the Former Wife independently obtained proof that the policy was unencumbered on or about April 3, 2014. Accordingly[,] attorney['s] fees and costs incurred after this time were not reasonably incurred by the Former Wife.
(Footnotes omitted). The GM recommended granting the Former Wife's "attorney['s] fees and costs incurred through April [3,] 2014." The GM noted that the Former Wife did not engage in bad faith or excessive litigation.
At a hearing on the Former Wife's exceptions, Judge Melissa Polo disagreed with Judge Lee's finding that the contempt issue was moot and concluded that the Former Husband never complied with the insurance obligation. Judge Polo stated, The Former Husband's counsel replied that Judge Polo responded, "l'm not overruling them and overturning them or reversing them."
The Former Wife's counsel argued that the GM applied the incorrect law because attorney's fees did not become unreasonable when she did not prevail. Yet, the Former Wife's counsel agreed that the attorney's fees were "too large," "huge," "ridiculous," and "outrageous." But, she contended that the Former Wife should not have to pay her own fees when the Former Husband has the ability to pay and the Former Wife has the need.
Judge Polo concluded that the GM's finding that attorney's fees incurred after April 3 were unreasonable was not supported by competent substantial evidence because the Former Husband did not cure the contempt issue himself. In a March 5, 2018, written order, Judge Polo found that the GM "misapplie[d] the law, as it recommends denial of the Former Wife's pre and/or post-April 3, 2014, fees and costs without findings of excessive litigation, misconduct, or other nonfinancial circumstances warranting denial of those fees and costs, to which the Former Wife would otherwise be entitled." Judge Polo granted the "Former Wife's request for payment by the Former Husband of all of her reasonable attorney's fees costs and suit money, pre and post-April 3, 2014, as to entitlement ... without limitation by date or legal theory." The trial court later determined the amount and entered the final order on appeal.
The Former Husband argues that Judge Polo abused her discretion by awarding attorney's fees and rejecting the GM's findings, which conformed to Judge Lee's prior ruling that the Former Wife's contempt motion was moot by April 3, 2014. He also claims that Judge Polo erroneously reweighed the evidence to reverse the mootness ruling and that the GM's ruling "that the fees after [April 3, 2014,] were not ‘reasonably’ incurred, ... is certainly a finding of ‘other relevant circumstances.’ "
The Former Wife contends that the trial court properly awarded fees under section 61.16 based on the parties' relative financial positions where there was no evidence of bad faith, frivolous litigation, or "other relevant circumstances" that would require denial. The Former Wife argues that Judge Lee's ruling concluded only that the Former Husband could not be held in contempt; it did not preclude an award of attorney's fees.
"Once a trial court appoints a magistrate to take testimony and make findings, it loses the prerogative of substituting its judgment for that of the magistrate"; the trial court assumes an appellate role. Cerase v. Dewhurst, 935 So. 2d 575, 578 (Fla. 3d DCA 2006). "[T]he trial court's review of the general magistrate's recommendations is limited to determining whether the general magistrate's findings of fact are supported by competent substantial evidence, and whether the general magistrate either made clearly erroneous legal conclusions or misconceived the legal effect of the evidence." S.V. v. Dep't of Child. & Fams., 178 So. 3d 421, 423 (Fla. 3d DCA 2015) (citing Cerase, 935 So. 2d at 578 ).
" Section 61.16(1) allows the trial court to ‘order a party to pay a reasonable amount for attorney's fees, suit money, and the cost to the other party’ in a dissolution action ‘after considering the financial resources of both parties.’ " Allen v. Juul, 278 So. 3d 783, 784 (Fla. 2d DCA 2019).
"In assessing a request for attorney's fees, the trial court may consider relevant factors: ‘such as 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.’ "
Id. (emphasis added) (quoting Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997) ). The trial court must "take into consideration and make specific detailed findings of fact regarding the parties' financial resources and any of the Rosen factors that are relevant to its determination" of attorney's fees. Allen, 278 So. 3d at 785-86.
Initially, we recognize that Judge Lee's order dismissing the Former Wife's contempt motion as moot was final. See generally Miller v. Miller, 959 So. 2d 421, 423-24 (Fla. 2d DCA 2007) (); see, e.g., Quillen v. Quillen, 247 So. 3d 40, 44 n.1 (Fla. 1st DCA 2018) (). Judge Lee's reservation of jurisdiction for attorney's fees did not affect finality. See HSBC Bank USA, Nat'l Ass'n ex rel. Fremont Home Loan Tr. 2005-B, Mortg.-Backed Certificates, Series 2005-B v. Buset, 216 So. 3d 701, 703 (Fla. 3d DCA 2017) (). There was no pending rehearing motion or appeal pertaining to Judge Lee's order at the time Judge Polo considered attorney's fees.
Accordingly, the GM and Judge Polo lacked authority to modify Judge Lee's rulings. See Pelphrey-Weigand v. Weigand, 283 So. 3d 822, 827 (Fla. 2d DCA 2019) ...
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Allison v. Allison
... ... clearly erroneous legal conclusions or misconceived the legal ... effect of the evidence." Herce v. Maines, 317 ... So.3d 1211, 1215 (Fla. 2d DCA 2021) (alteration in original) ... (quoting S.V. v. Dep't of Child. &Fams., 178 ... ...