Sierra v. Sierra
| Decision Date | 09 April 1987 |
| Docket Number | No. 68033,68033 |
| Citation | 12 Fla. L. Weekly 169,505 So.2d 432 |
| Parties | , 12 Fla. L. Weekly 169 Manuel A. SIERRA, Petitioner, v. Arlene SIERRA, Respondent. |
| Court | Florida Supreme Court |
Paul A. Louis and Frank Nussbaum, of Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A., Miami, for petitioner.
Irving B. Levenson, Miami, for respondent.
We have for review an order of the Third District Court of Appeal awarding appellate attorney's fees in the amount of $10,000 against the petitioner husband subsequent to its per curiam decision on the merits in Sierra v. Sierra, 475 So.2d 707 (Fla. 3d DCA 1985). The district court determined the amount of the attorney's fee to be awarded without any evidentiary basis, thus conflicting with Ludemann v. Ludemann, 317 So.2d 860 (Fla. 4th DCA 1975). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Petitioner contends that the district court erred in assessing the fee. We agree.
The authority to award attorney's fees in marital cases derives from section 61.16, Florida Statutes (1985):
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. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.
On appeal, attorney's fees are governed by Florida Rule of Appellate Procedure 9.400(b):
A motion for attorney's fees may be served not later than the time for service of the reply brief and shall state the grounds upon which recovery is sought. The assessment of attorney's fees may be remanded to the lower tribunal. If attorney's fees are assessed by the court, the lower tribunal may enforce payment.
Respondent correctly contends that appellate courts have the authority to award attorney's fees with reference to those matters which have been litigated in the appellate courts. The issue, however, is not whether the district court had the authority to award attorney's fees but whether it could determine the amount to be awarded in the absence of any evidence.
There is no question that trial courts in marital cases have been precluded from assessing the amount of attorney's fees without an evidentiary basis. See Lamar v. Lamar, 323 So.2d 43 (Fla. 4th DCA 1975). Indeed, the Third District Court itself has repeatedly emphasized that attorney's fees may not be fixed without expert testimony and must be based upon competent evidence. See Lee v. Gilbert, Silverstein, and Hellman, 350 So.2d 1147 (Fla. 3d DCA 1977) (); Donner v. Donner, 281 So.2d 399, 401 (Fla. 3d DCA) (), cert. denied, 287 So.2d 679 (Fla.1973); Ortiz v. Ortiz, 211 So.2d 243, 245 (Fla. 3d DCA 1968) (). We fail to see why appellate courts should not also be precluded from assessing the amount of attorney's fees to be awarded without an evidentiary basis. Indeed, most district courts remand under the circumstances presented in this case. See Schneider v. Schneider, 389 So.2d 311, 312 (Fla. 2d DCA 1980); McIntyre v. McIntyre, 380 So.2d 1195, 1197 (Fla. 5th DCA 1980); Dresser v. Dresser, 350 So.2d 1152, 1153-54 (Fla. 1st DCA 1977); Ludemann v. Ludemann, 317 So.2d 860, 862 (Fla. 4th DCA 1975).
In Ludemann, the Fourth District considered the specific questions presented here. In that case the district court granted the wife's motion for attorney's fees on appeal and remanded to the trial court for the assessment of such fees, pursuant to the appellate rules (then Rule 3.16(e), F.A.R.). The district court of appeal explained that the determination of whether to award attorney's fees for services on appeal in domestic litigation is a prerogative of the appellate court. 317 So.2d at 861. Although Judge Owen acknowledged that appellate courts can assess the amount of such fees, he noted that the better practice is to remand to the trial court for such a determination. The court recognized that in either event evidence is necessary:
The latter alternative [ to the trial court] is usually the more preferable, and the reason is quite simple. An appellate court is not equipped to conduct evidentiary hearings and thus for it to assess the amount of the fee it would either have to do so solely on the basis of affidavits and counteraffidavits (which is an undesirable practice in the absence of the agreement of the parties to such) or would have to appoint a commissioner to take testimony and report the same back to the court (which is a cumbersome process).
The need for evidence is obvious. The pleadings or documents filed with the court are not the only...
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