Schmitz v. Schmitz, 4D04-1850.

• Citation: 891 So.2d 1140
• Decision Date: 26 January 2005
• Docket Number: No. 4D04-1850.,4D04-1850.
• Parties: Sherri Lynn SCHMITZ, Appellant, v. Paul Richard SCHMITZ, Appellee.
• Court: Court of Appeal of Florida (US)

891 So.2d 1140

Sherri Lynn SCHMITZ, Appellant, v. Paul Richard SCHMITZ, Appellee.

No. 4D04-1850.

District Court of Appeal of Florida, Fourth District.

January 26, 2005.

Sari Teichman Addicott and Michael L. Addicott of Addicott & Addicott, P.A., Hollywood, for appellant.

Nancy W. Gregoire and Joel L. Kirschbaum of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for appellee.

GROSS, J.

Sherri Lynn Schmitz, the wife in an ongoing divorce case, appeals an order denying her request for additional interim fees and costs from her husband, Paul Schmitz. Concerned that the parties had over-litigated the case, the trial court declined to award interim fees beyond a previous interim award. The trial court's decision was well within its broad discretion. Therefore, we affirm.

In November, 2003, the trial court ordered the husband to pay the wife $87,926.05 in temporary attorney's fees and costs. In her "Litigation Budget," the wife had requested $112,926.75 "to bring this matter to resolution."

In March, 2004, the wife filed a motion seeking, inter alia, additional attorney's fees and suit money. At the hearing on the motion, the court noted that it would not make a final decision on the responsibility for fees until the end of the litigation.

As of March, 2004, the parties had spent over ten percent of their net worth on litigation costs. The husband's financial affidavit indicated a monthly gross income of $22,445, but he claimed expenses far exceeding this amount. According to the husband's financial affidavit, the couple's net worth totaled nearly $3 million, including a marital residence worth $700,000, rental properties valued at $1.775 million, a "Wachovia" account worth $229,000, and retirement accounts amounting to $194,000. The wife had exhausted the first fee award and owed over $38,000 in fees and costs. The husband had spent $335,000 since the beginning of the litigation, including $145,834 for his own fees and costs, $31,000 in accountant fees, almost $88,000 for the wife's fees, $20,000 for a guardian ad litem, $42,000 for the children's therapists, and $2,000 for the child custody evaluator. An accountant testified that the only source of funds available to fund further litigation, other than borrowing against assets, was the couple's individual retirement accounts.

Dismayed by the litigation expenses, the circuit court told the parties that "spending this kind of money is fiscally irresponsible." The court observed that both parties had spent similar amounts on attorney's fees to "get no place," and that after burning through $300,000 in litigation costs, the parties were not close to a resolution. The court ordered sequestration of the Wachovia account to pay for expenses already incurred and authorized the parties to liquidate their individual retirement accounts to further fund the litigation.

Section 61.16(1), Florida Statutes (2003), authorizes the circuit court to order a party to pay a reasonable amount of attorney's fees and costs to the other party in a dissolution action. "The standard for awarding attorney's fees in dissolution cases is the financial need of the requesting party and the financial ability of the other party to pay." Derrevere v. Derrevere, 29 Fla. L. Weekly D2195, D2196, ___ So.2d ___, ___, 2004 WL 2173635 (Fla. 4th DCA Sept.29, 2004). The supreme court has written that the statute should be construed liberally "to allow consideration of any factor necessary to provide justice and ensure equity between the parties." Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997). Rosen established other factors for the trial court to consider, including (1) the scope and history of the litigation; (2) the duration of the litigation; (3) the merits of the respective positions; (4) whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and (5) the existence and course of prior or pending litigation. Id.; see also Bane v. Bane, 775 So.2d 938, 942 n. 5 (Fla.2000) (noting that while the primary factor to consider is the financial resources of the parties, the court should consider the other factors noted in Rosen).

At the...