Levy v. Levy

• Citation: 11 Fla. L. Weekly 336,483 So.2d 455
• Decision Date: 04 February 1986
• Docket Number: No. 85-1521,85-1521
• Court: Court of Appeal of Florida (US)
• Parties: 11 Fla. L. Weekly 336 Sidney LEVY, Appellant, v. Lynn D. LEVY and Sams, Ward, Newman, Elser & Lovell, P.A., Appellees.

Page 455

483 So.2d 455

11 Fla. L. Weekly 336

Sidney LEVY, Appellant, v. Lynn D. LEVY and Sams, Ward, Newman, Elser & Lovell, P.A., Appellees.

No. 85-1521.

District Court of Appeal of Florida,

Third District.

Feb. 4, 1986.

Rehearing Denied March 10, 1086.

Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill and Dale F. Webner, Tampa, for appellant.

Sams, Ward, Newman, Elser & Lovell, and Frank Newman, Miami, for appellees.

Before SCHWARTZ, C.J., and BARKDULL and JORGENSON, JJ.

SCHWARTZ, Chief Judge.

The ex-husband appeals from a June 12, 1985 order awarding $50,000, less $14,000 already paid in temporary fees, for both the pre- and post-final judgment services of the wife's attorneys. We affirm.

I

The appellant first claims that the trial court lacked jurisdiction to award fees for the extensive post-judgment efforts of counsel in the interpretation and enforcement of the final judgment ¹ because the trial court did not specifically reserve jurisdiction to do so in the post-judgment orders themselves. See Miraglia v. Geiger, 463 So.2d 448 (Fla. 4th DCA 1985). On the singular facts of this case, we are compelled to disagree. The January 5, 1983 final judgment

reserves jurisdiction to hear and consider all matters relative to attorneys' fees and costs and ... to enforce the provision of this Final Judgment and the Agreements which are incorporated herein by reference.

In contrast to the case upon which the appellants heavily rely, McCallum v. McCallum, 364 So.2d 97 (Fla. 4th DCA 1978), ² this reservation did not relate only to "past attorneys' fees rather than future attorneys' fees." More important, again unlike McCallum in which the trial court "spent" whatever jurisdiction was retained in the final judgment by subsequently making a specific award for pre-judgment services, the trial court in this case made no such award until the order now on appeal--which, as we have seen, assessed fees for both classes of services. Thus, the unqualified reservation of jurisdiction in the final judgment remained entirely extant. Finally, in further distinction with McCallum, the continuing nature of the final judgment's reservation and its application to post-decretal services were specifically recognized and, indeed, independently established by a September 2, 1983 order granting $4,000 in temporary fees for just those activities, which stated that the sum

shall be accredited toward any final judgment for attorneys fees awarded to wife in these proceedings.

We think it clear that the viability of the reservation in the final judgment, confirmed and reasserted as it was by the order of September 2, 1983, provided ample jurisdictional authority for the trial court to assess fees for all the services rendered the wife below. See § 61.16, Fla.Stat. (1983); Jackson v. Seder, 467 So.2d 422 (Fla. 4th DCA 1985).

II

Although, in view of the unrebutted expert testimony which supports the award, Levy claims no error in the assessment of $50,000 as a reasonable fee for counsel's services, ³ he does argue that the award may not exceed and therefore should be reduced to the admittedly lower amount which the wife contracted to pay the lawyers on an hourly basis. ⁴ Again, we disagree. Consistent with one of the underlying principles upon which fees are allowed at all in domestic cases, that is, to equalize the otherwise disparate financial abilities of the respective spouses to retain counsel, Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla.1980); Bailey v. Bailey, 392 So.2d 49, 52 (Fla. 3d DCA 1981); Patterson v. Patterson, 399 So.2d 73 (Fla. 5th DCA 1981); and cases cited; accord Seitz v. Seitz, 471 So.2d 612, 615 (Fla. 3d DCA 1985), it has been consistently recognized that a reasonable fee, as awarded against the husband, is not limited to the almost necessarily lower amount to which the wife has agreed in accordance with her ability to do so. The supreme court so held in Bosem v. Bosem, 279 So.2d 863 (Fla.1973), which at 279 So.2d 866 specifically reversed this court's contrary indication in Bosem v. Bosem, 269 So.2d 758 (Fla. 3d DCA 1972); the common understanding to this effect is embodied in fee agreements such as the one in this very case, ⁵ which almost universally so provide. Levy claims, however, that a different result is compelled by the statement in the recently decided case of Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985), ⁶ that "in no case should the court-awarded fee exceed the fee agreement reached by the attorney and his client." For two reasons, we find no merit in this argument.

1. For the very reasons we have outlined, it is apparent that at least this aspect of the Rowe case, ⁷ which involved statutory fees awarded to the successful party in a malpractice case, can have no application in the domestic context: since fees are awarded just because one party cannot afford them as well as the other, the liability of the wealthy party cannot be limited to the exposure of the impecunious one. This conclusion is reenforced by the fact that the opinion in Rowe did not even refer to Bosem, much less overrule it as would be required for us to disregard the controlling effect of that decision. Hoffman v. Jones, 280 So.2d 431 (Fla.1973); see State ex rel. Garland v. City of West Palm Beach, 141 Fla. 244, 247, 193 So. 297, 298 (1940). That Rowe did not affect Bosem is demonstrated also by its reliance for the proposition in question upon Trustees of Cameron-Brown v. Tavormina, 385 So.2d 728 (Fla. 3d DCA 1980), which is strongly urged by the appellant as well. But Tavormina, pointedly citing Bosem itself, states on its face that:

We expressly limit our holding to those instances in which two contracts exist: One between the parties, and one between a party and his counsel. We exempt from our consideration the awarding of fees by statutory authority which embodies public policy considerations not pertinent hereto. [e.s.] Cf. Bosem v. Bosem, 279 So.2d 863 (Fla.1973), rev'g 269 So.2d 758 (Fla. 3d DCA 1972).

385 So.2d at 731.

2. Even if the supreme court were arguendo to decide otherwise on the merits of the issue, it is plain that any such holding could not affect this case. To apply the newly announced rule in Rowe would invalidate the provisions of the fee agreement in question--which were then fully enforceable under Bosem--that the attorneys' rights against the husband were not limited to those provided by the fee arrangement with the wife. ⁸ Such a result is precluded by the rule that a judicially effected change in the law may not be retroactively applied to impair vested rights. Florida Forest and Park Service v. Strickland, 154 Fla. 472, 477, 18...