Schreiber v. Schreiber, Case No. 5D20-2684

• Court: Court of Appeal of Florida (US)
• Writing for the Court: WOZNIAK, J.
• Citation: 331 So.3d 874
• Parties: Drew SCHREIBER, Appellant, v. Dawn SCHREIBER, Appellee.
• Decision Date: 30 December 2021
• Docket Number: Case No. 5D20-2684

331 So.3d 874

Drew SCHREIBER, Appellant,
v.
Dawn SCHREIBER, Appellee.

Case No. 5D20-2684

District Court of Appeal of Florida, Fifth District.

Opinion filed December 30, 2021

AnnMarie Jenkinson and Nancy A. Schofield, of Jenkinson Legal, PLLC, Orlando, for Appellant.

John H. Pelzer, of Greenspoon Marder, LLP, Fort Lauderdale, for Appellee.

WOZNIAK, J.

Drew Schreiber ("Former Husband") appeals the trial court's Order on Former Wife's Motion for Attorney's Fees, which awarded Dawn Schreiber ("Former Wife") the net amount of $52,513.39 in attorneys’ fees for the work two law firms performed in representing her in this high-conflict divorce action. We find merit in Former Husband's argument that the amount awarded is not supported by competent, substantial evidence, and therefore we reverse. We do not remand for a new evidentiary hearing because Former Wife failed to present any competent evidence of her fees at the hearing that would justify remand for a subsequent hearing.

In a bifurcated proceeding, the trial court dissolved the parties’ marriage in March 2018 and retained jurisdiction to determine, inter alia, attorneys’ fees. Former Wife then moved for attorneys’ fees and costs, asserting Former Husband had the ongoing ability to contribute to her fees and costs and that she was in need of such contribution. Her motion gave rise to the two fee hearings that occurred a year apart.

There is no transcript of the October 14, 2019, first hearing (the "First Hearing"). What we can glean from the record is that Former Husband viewed the First Hearing as completely resolving all fee issues, including entitlement and quantification, with Former Wife failing in her evidentiary burden because Former Husband successfully precluded Former Wife's introduction of documentary evidence of her attorneys’ fees. The trial court disagreed with this characterization and viewed the First Hearing as resolving only the issue of Former Wife's entitlement to fees. As such, the court rendered an order requiring Former Wife to provide Former Husband with the invoices from Former Wife's lawyers and, if the parties could not thereafter reach an agreement as to the reasonableness of the fees charged, Former Wife's counsel was to set a hearing on the issue of reasonableness. Because no transcript of the First Hearing exists, we can find no error in the trial court's conclusion that the First Hearing was limited to the issue of entitlement.

331 So.3d 876

Despite the trial court's directive, Former Wife failed to provide Former Husband with her invoices and further failed to notice a hearing on the fee issue. Six months after the First Hearing, the trial court took matters into its own hands and sua sponte rendered an order that recited Former Wife's failings, again ordered Former Wife to provide invoices within two weeks, and, if the parties thereafter could not reach an agreement, ordered that a hearing be set on the reasonableness of the attorneys’ rates and hours. No agreement was reached, and the cause proceeded to a second hearing (the "Second Hearing") for the purpose of determining the issues of reasonableness and amounts.

At the October 13, 2020, Second Hearing, Former Wife's evidence consisted solely of testimony from expert witness Peter Cushing. None of the attorneys who billed the fees being sought appeared, and Mr. Cushing's attempt to identify an affidavit of attorney's fees executed by one of Former Wife's prior attorneys, who was not present at the hearing, was met with Former Husband's objection on hearsay grounds and properly sustained by the trial court.¹ Further, while several other fee affidavits, invoices, and engagement/retainer agreements from various law firms were mentioned at the hearing and noted in the Court Minutes and Evidence Control Sheet as having been marked for identification purposes, none of these documents were introduced into evidence at the hearing.

When Mr. Cushing attempted to testify about hourly rates for each billing attorney, the trial court determined that Mr. Cushing was referencing several pages of notes and a chart that had not been provided to Former Husband or to the court and sustained Former Husband's objection, instructing Mr. Cushing not to refer to the notes or chart.² From that point, Mr. Cushing's testimony lacked specificity. Before beginning cross examination of Mr. Cushing, Former Husband moved for a "directed verdict,"³ arguing that Mr. Cushing's "rough estimates" and "guesses" were insufficient to support a finding of reasonableness and, without testimony or invoices from any of the billing attorneys, there existed no competent evidence of the services provided. The court initially...