Kozich v. Kozich
| Decision Date | 11 February 1987 |
| Docket Number | No. 85-2516,85-2516 |
| Citation | 501 So.2d 1386,12 Fla. L. Weekly 504 |
| Parties | 12 Fla. L. Weekly 504 Allan A. KOZICH, Appellant-Cross Appellee, v. Gloria J. KOZICH and William H. Stolberg, Appellees-Cross Appellants. |
| Court | Florida District Court of Appeals |
S. Robert Zimmerman, P.A., Pompano Beach, and Philip Burlington and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellant-cross appellee.
Law Offices of Richard A. Sherman, P.A., and William H. Stolberg of Shankweiler & Stolberg, Fort Lauderdale, for appellees-cross appellants.
In this action initially involving a dissolution of marriage, the husband and wife entered into a partial settlement of certain obligations incorporated into a Final Judgment. Thereafter, the wife's attorney moved to establish a charging lien for unpaid attorney's fees. His claim, as to the wife, was based upon contract as to the rate of compensation and upon hours spent as to the amount of compensation. His claim, as to the husband, was based upon language in paragraph 6.C. of the Final Judgment, the pertinent portion of which provides: "The Wife has prayed for attorney's fees and costs, and the Husband shall pay a portion of same, upon further hearing...." Paragraph 6.F. provided: "Jurisdiction is retained to enforce this final judgment as well as the issue of attorney's fees and costs."
The settlement agreement involved payment of $93,000 to the wife by the husband and stated, inter alia: "The Husband has satisfied by settlement and payment of certain cash monies, the Wife's claim for attorneys (sic) fees and costs, ..." This is repeated at various times and in various forms throughout the agreement and is accompanied by the wife's agreement to hold the husband harmless from any claims for attorney's fees, any charging lien, and other specified claims.
The wife paid into the registry of the court, pursuant to court order, the sum of $20,000.00. She had previously paid her attorney, Stolberg, the sum of $9,000.00. The claim for a charging lien for the balance of attorney's fees was originally $40,240.75, after credit for the $9,000.00 paid.
The trial court took testimony and in the exercise of its "equitable powers" ordered enforcement as to $19,000.00 of the amount claimed, to be paid out of the registry of the court. The court (1) specifically declined to make a finding as to the total amount of a reasonable fee, holding only that it would exceed $28,000.00; (2) found that the wife had agreed to pay her attorney a reasonable fee and that the wife and her attorney had agreed that funds were to come from money recovered by the wife in the dissolution; and (3) held that its order was without prejudice to the attorney proceeding in an action at law against either the wife or the husband to recover the balance of attorney's fees due for services to the wife.
This appeal presents the issue of whether the wife's attorney may proceed against the husband directly for fees owed by the wife. By cross appeal the attorney questions whether the court erred in failing to permit enforcement of a charging lien for the full amount of his fees.
We find that the policy underlying the granting and enforcement of charging liens and the requirements for perfection of such a lien explained by Justice Ehrlich in Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A., v. Baucom, 428 So.2d 1383 (Fla.1983), are present in this case. By the same authority, however, we hold that the trial court erred in suggesting that the attorney may proceed against the husband to collect fees owed by the wife. Whether the final judgment or the settlement came first, on these facts the husband is not liable for the wife's attorney's fees. As the court stated in Wallace v. Townsell, 471 So.2d...
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Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A.
...to become entitled to a determination by the court, sitting without a jury, of the amount of attorney's fees due. 7 Kozich v. Kozich, 501 So.2d 1386 (Fla. 4th DCA 1987). Finally, we reject Bernard Litman's contention that Fine Jacobson merely preserved that which had been recovered by Podhu......
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Stasey v. Stasey
...the forum hearing the underlying controversy. See, e.g., In re Warner's Estate, 35 So.2d 296, 298-99 (Fla.1948); Kozich v. Kozich, 501 So.2d 1386, 1387-88 (Fla.Dist.Ct.App.1987) (divorce action).17 Despite sec. 481.13, Minn.Stats., permitting an attorney to establish the amount of fees and ......
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Franklin & Marbin, P.A. v. Mascola
...trial court proceeded to rule that it had the discretion to determine the amount of fees due, citing our decision in Kozich v. Kozich, 501 So.2d 1386 (Fla. 4th DCA 1987). In Kozich we reversed a trial judge for refusing to determine the amount of a fee underlying a charging lien. A husband ......
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Baker & Hostetler, Llp v. Swearingen
...lien, standing was not raised either in the trial court or in this court. We decline, therefore, to consider it. 2. Kozich v. Kozich, 501 So.2d 1386 (Fla. 4th DCA 1987) seems to suggest that a charging lien can be filed subsequent to final judgment, however, later Fourth District Court case......