Rosen v. Rosen

• Decision Date: 24 April 1997
• Docket Number: No. 86649,86649
• Citation: 696 So.2d 697
• Parties: 22 Fla. L. Weekly S210 Eileen ROSEN, Petitioner, v. Gene ROSEN, Respondent.
• Court: Florida Supreme Court

Page 697

696 So.2d 697

22 Fla. L. Weekly S210

Eileen ROSEN, Petitioner, v. Gene ROSEN, Respondent.

No. 86649.

Supreme Court of Florida.

April 24, 1997.

Rehearing Denied July 1, 1997.

Joe N. Unger of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, and Lawrence A. France, P.A., North Miami Beach, for Petitioner.

Donald G. Criscuolo of Genet & Criscuolo, P.A., North Miami Beach, and Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller & McIntyre, P.A., Fort Lauderdale, for Respondent.

PER CURIAM.

We have for review Rosen v. Rosen, 659 So.2d 368 (Fla. 3d DCA 1995) (Rosen VI ), in which the district court used a "results obtained" standard to reverse an award of attorney's fees in this proceeding under chapter 61, Florida Statutes (1995), and converted the alimony award from permanent to rehabilitative. We have jurisdiction based on express and direct conflict with Ryan v. Ryan, 664 So.2d 994 (Fla. 4th DCA 1995); Brock v. Brock, 654 So.2d 163 (Fla. 1st DCA 1995), Fabre v. Levine, 618 So.2d 317 (Fla. 1st DCA), review denied, 629 So.2d 132 (Fla.1993); Allen v. Heinrich, 623 So.2d 540 (Fla. 2d DCA 1993), and other cases holding that a trial court cannot use a "results obtained" or "prevailing party" standard in awarding attorney's fees in family law cases. Art. V, § 3(b)(3), Fla.Const. For the reasons expressed, we approve in part and quash in part the district court's decision and find that: (1) while need and ability to pay are the primary elements to be considered when deciding entitlement to attorney's fees in chapter 61 proceedings, they are not exclusive; a trial court may consider all the circumstances surrounding the suit; (2) absent a marital settlement agreement to the contrary, a trial court may consider the current employability of a party in a modification of alimony proceeding to determine whether a change from permanent to rehabilitative alimony is appropriate, even if the party's employability was considered in initially awarding alimony; and (3) under the circumstances of this case, the district court erred in reversing the trial court's decision to deny Mr. Rosen's request to alter the alimony from permanent to rehabilitative.

The facts of this case are as follows. Gene and Eileen Rosen were married for nine years, during which time they had two children. The marriage was dissolved in 1979, and the parties have engaged in continuous litigation since that time. ¹ In 1991, Ms. Rosen filed a petition seeking an award of attorney's fees and costs, an increase in alimony and child support, reimbursement for payment of a psychologist's bill, and other relief, including interest on the arrearage. In turn, Mr. Rosen sought a reduction in alimony, a reduction in child support, and a change in the alimony from permanent to rehabilitative. At issue in this proceeding are (1) Ms. Rosen's request for attorney's fees, which the

trial court granted, and (2) Mr. Rosen's request to change the previously awarded alimony from permanent to rehabilitative, which the trial court denied

On appeal, the district court reversed the attorney's fee award, stating that it "should be reconsidered in light of the reversal of many of the benefits originally received by [Ms. Rosen]." Rosen, 659 So.2d at 370. The district court also reversed the trial court's denial of Mr. Rosen's request to change the permanent alimony to rehabilitative.

As indicated above, we accepted review of this case on the attorney's fees issue based on direct conflict with a number of cases providing that a trial court cannot apply a prevailing party or results obtained standard in determining whether or not to award fees in family law cases.

ATTORNEY'S FEES

Any determination regarding an appropriate award of attorney's fees in proceedings for dissolution of marriage, support, or child custody begins with section 61.16, Florida Statutes (1995), which provides in pertinent part:

(1) The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney's fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.... In determining whether to make attorney's fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties, unless an appellate party's cause is deemed to be frivolous.

The purpose of this section is to ensure that both parties will have a similar ability to obtain competent legal counsel. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We reaffirm the importance of that purpose today. As we stated in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828, 835 (Fla.1990), in which we discussed section 61.16:

Our case law implementing this statute requires a judge to consider the needs of the party seeking a fee and the financial resources of the parties to assure that both parties receive adequate representation. A significant purpose of this fee-authorizing statute is to assure that one party is not limited in the type of representation he or she would receive because that party's financial position is so inferior to that of the other party.

In Canakaris, we noted that it is not necessary that one spouse be completely unable to pay attorney's fees for the trial court to require the other spouse to pay those fees. In other words, to ensure that both parties have similar access to competent legal counsel, the trial court must look to each spouse's need for suit money versus each spouse's respective ability to pay.

In Quanstrom, we reevaluated the lodestar method for determining appropriate attorney's fee awards in litigation generally. Essentially, under the lodestar approach, a court multiplies the number of hours reasonably expended by a reasonable hourly rate. This produces the "lodestar," which is the objective basis for the award of attorney's fees. Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985). Once the lodestar figure is calculated, a court adds to or subtracts from that figure based on the contingency risk factor and the results obtained. In reexamining the lodestar approach in Quanstrom, we emphasized that different categories of cases may require different criteria to achieve the legislative or court objectives in authorizing a reasonable attorney's fee. Specifically, we stated that attorney's fees in chapter 61 proceedings are governed by section 61.16. We further stated that, although the basic lodestar method might be an appropriate starting point for computing a reasonable fee, a contingency fee multiplier is not applicable in such cases. In sum, arriving at the "lodestar" (reasonable hours times a reasonable hourly rate) may be an appropriate starting point for setting a reasonable attorney's fee in domestic relations cases, but entitlement to such a fee must take into consideration all the circumstances surrounding the litigation, including but not limited to the needs of the spouse

seeking the fee in light of the financial resources of the parties

A review of district court opinions reflects significant distinctions in the calculation of attorney's fees under section 61.16. ² For instance, many opinions reflect that results obtained and/or the prevailing party factors, which are employed after the basic "lodestar" is calculated, are inapplicable in family law cases. White v. White, 683 So.2d 510 (Fla. 4th DCA 1996) (basis for fees under law governing this issue has little if anything to do with prevailing party); Brock (an award of fees is not dependent on a party's success in family law litigation); Allen (award depends not on who wins, but rather on the relative financial circumstances of the parties); Fabre (same); Chertoff v. Chertoff, 553 So.2d 179 (Fla. 3d DCA 1989) (award of attorney's fees in matrimonial action is not governed by a prevailing party standard); Hudgens v. Hudgens, 411 So.2d 354 (Fla. 2d DCA 1982). Other cases conclude that the results obtained are to be considered in calculating an appropriate attorney's fee. Rosen VI; Peacon v. Peacon, 578 So.2d 781 (Fla. 3d DCA)(trial court must reconsider the amount of a reasonable fee in light of the substantial alteration of the results obtained), review denied, 589 So.2d 292 (Fla.1991); Margulies v. Margulies, 506 So.2d 1093 (Fla. 3d DCA 1987)(adoption of the lodestar formula reconfirmed that the results obtained is still a factor to be considered in awarding fees); Adler v. Adler, 418 So.2d 1007 (Fla. 3d DCA 1982)(amount of fees not excessive in light of results achieved and the respective financial circumstances of the parties); Meltzer v. Meltzer, 400 So.2d 32 (Fla. 3d DCA 1981)(same); Adams v. Adams, 376 So.2d 1204 (Fla. 3d DCA 1979)(amount of award is consistent with the evidence as to the hours and effort expended, the results achieved, and the quality of the services rendered), cert. denied, 388 So.2d 1109 (Fla.1980). Still other cases apparently conclude that the results obtained and/or prevailing party factors are to be used in some instances but not in others. Robbie v. Robbie, 591 So.2d 1006 (Fla. 4th DCA 1991)(lodestar method may be useful method in considering a final allowance of fees but does not apply to temporary awards because many of the Rowe factors, such as who is the prevailing party, are not known); Davis v. Davis, 584 So.2d 1117 (Fla. 1st DCA 1991)(prevailing party is not always dispositive).

We resolve this conflict by pointing out that proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law. See § 61.011, Fla.Stat. (1995) ("Proceedings under this chapter are in chancery."). The legislature has given trial judges wide leeway to work equity in chapter 61 proceedings. See, e.g., § 61.001, Fla.Stat. (1995). Thus, section 61.16 should be...