Simpson v. Simpson

• Decision Date: 23 March 2001
• Docket Number: No. 5D00-1796.,5D00-1796.
• Citation: 780 So.2d 985
• Parties: Eugene R. SIMPSON, Appellant, v. Christine K. SIMPSON, Appellee.
• Court: Florida District Court of Appeals

780 So.2d 985

Eugene R. SIMPSON, Appellant, v. Christine K. SIMPSON, Appellee.

No. 5D00-1796.

District Court of Appeal of Florida, Fifth District.

March 23, 2001.

Thomas R. Peppler of Stein, Sonnenschein, Hochman & Peppler, Oviedo, for Appellant.

Keersten L. Heskin of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellee.

SAWAYA, J.

Eugene Simpson, the former husband, appeals the supplemental final judgment dissolving the marriage between himself and Christine Simpson, the former wife. He argues that the trial court erred when it awarded attorney's fees to the former wife without making specific findings as to a reasonable rate, number of hours expended, and the exact misconduct of the former husband justifying the award. Before we resolve this issue, however, we must determine whether we have jurisdiction to hear this appeal.

Jurisdiction Of This Court To Hear This Appeal

The jurisdiction of this court is invoked by the filing of a notice of appeal "within 30 days of rendition of the order to be reviewed." Rule 9.110(b), Fla. R.App. P. Rendition is defined in rule 9.020(h)(1), Florida Rules of Appellate Procedure, which provides:

(h) Rendition (of an Order). An order is rendered when a signed, written order is filed with the clerk of the lower tribunal. However, unless another applicable rule of procedure specifically provides to the contrary, if a final order has been entered and there has been filed in the lower tribunal an authorized and timely motion for new trial or rehearing, ... the following exceptions apply:

(1) If such a motion or motions have been filed, the final order shall not be deemed rendered with respect to any claim between the movant and any party against whom relief is sought by the motion or motions until the filing of a signed, written order disposing of all such motions between such parties.

(Emphasis added).

Here, the former wife timely filed a motion for rehearing of the judgment, but withdrew her motion for rehearing five months later, before it was decided by the trial court. Therefore, a signed written order disposing of the motion for rehearing was never entered. The former husband filed his notice of appeal within thirty days of the notice of withdrawal. In order to determine whether we have jurisdiction, we must determine whether the filing of a notice of appeal within thirty days of the notice of withdrawal of the motion for rehearing is sufficient compliance with rule 9.020(h)(1) to confer jurisdiction on this court. This appears to be a case of first impression under the current version of the rule.

We find that analysis of the historical development of rule 9.020(h)(1) is helpful in resolving the jurisdictional issue before us. The pre-1992 version of the rule provided that an order was not deemed rendered "until disposition" of a motion for rehearing. In Bianco v. Bianco, 383 So.2d 1120 (Fla. 4th DCA 1980), the court defined "disposition" as including the abandonment or withdrawal of a motion for rehearing. Thus a notice of appeal filed within thirty days of the notice of withdrawal of a motion for rehearing was timely under the pre 1992 rule.

However, in 1992, the rule was amended to include the specific language underlined in the above quote. The Committee Notes which discuss the 1992 amendment state only that subdivision (g)(1) [now (h)(1) ] was added "to clarify the date of rendition when post-judgment motions have been filed." Fla. R.App. P. 9.020 (Committee Notes 1992 Amendment). There is no comment regarding what effect withdrawal or abandonment of a motion for rehearing should have. If we strictly construe the current rule, then the voluntary withdrawal of a motion for rehearing after the thirty-day period for filing a notice of appeal would extinguish the right of either party to appeal. The court in Bianco recognized this problem would exist if "disposition" in the pre 1992 rule was not defined to include abandonment or withdrawal:

Were it otherwise, neither party to a dissolution proceeding could appeal where one party abandoned or withdrew a timely motion for rehearing more than thirty days after the final judgment. Both sides may be equally unhappy with a judgment and desirous of appealing. Abandonment of a post-trial motion by one should not destroy jurisdiction for an appeal by the other party who sat by waiting for final rendition of the judgment.

Id. at 1121 n. 1.

We conclude that the 1992 rule change was intended only to clarify that the post-judgment motion tolls rendition of the order or judgment to be reviewed to the time that the written, signed order disposing of the post-judgment motion is filed and, by its silence on the topics of abandonment and withdrawal, has not affected the holding in Bianco. Thus the rationale of Bianco applies to the current version of rule 9.020(h)(1). To hold otherwise would result in dismissal of the former husband's appeal for lack of jurisdiction because it would be untimely. To have avoided this result, the former husband would have had to timely serve his own motion for rehearing or, alternatively, file a notice of appeal within thirty days of the filing of the judgment in the clerk's office. If he had chosen the latter, this court would have been required to abate the appeal until the lower court disposed of the former wife's motion for rehearing. See Maynard v. Maynard, 515 So.2d 308 (Fla. 3d DCA 1987) (where former husband filed a motion to amend the final judgment and former wife filed a notice of appeal from the final judgment, the appellate court would abate the appeal and remand the case to the trial court to dispose of the motion to amend). We find that requiring any party to protect his or her appeal rights in this manner makes little sense and is not what is contemplated by the rule.

Accordingly, the notice of appeal in the instant case was timely and this court has jurisdiction to hear this appeal. Therefore, we may proceed to resolve the issue raised by the parties in these proceedings.

Issue on Appeal—The Propriety Of The Award Of Attorney's Fees

The substantive issue presented to us is whether the trial court erred by failing to make findings in the supplemental final judgment to justify the former wife's entitlement to attorney's fees and the amount awarded to her. The trial court awarded attorney's fees to the former wife to compensate her for the fees occasioned by the former husband's misconduct in attempting to hide assets.¹ Such an award is generally considered appropriate as reimbursement for the additional legal work caused by the misconduct of the offending party. Mettler v. Mettler, 569 So.2d 496 (Fla. 4th DCA 1990); Gagnon v. Gagnon, 539 So.2d 1179 (Fla. 1st DCA 1989); see also Rosen v. Rosen, 696 So.2d 697 (Fla.1997) (holding that entitlement to attorney's fees in a dissolution action must take into consideration all of the circumstances surrounding the litigation).

The former husband contends that reversal of the fee award is required because the trial court failed to make findings of fact in the judgment as to the number of hours spent and a reasonable hourly rate pursuant to Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), modified, Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990). The former husband is correct that the trial court must make the requisite Rowe findings in the judgment to support the amount of the award. Here, the court made no findings as to the number of hours reasonably expended or an hourly rate and, therefore, reversal is required.² See Ard v. Ard, 765 So.2d 106 (Fla. 1st DCA 2000); Hamlin v. Hamlin, 722 So.2d 851 (Fla. 1st DCA 1998); Warner v. Warner, 692 So.2d 266 (Fla. 5th DCA 1997); see also Shrove v. Shrove, 724 So.2d 679 (Fla. 4th DCA 1999); Rohlfs v. Rohlfs, 666 So.2d 568 (Fla. 3d DCA 1996); Sunday v. Sunday, 610 So.2d 62 (Fla. 3d DCA 1992); Maas v. Maas, 541 So.2d 160 (Fla. 2d DCA 1989).

The former wife argues that even if specific findings regarding hourly rate and time spent are not contained in the judgment, affirmance is appropriate because the record contains sufficient information to establish those factors. We disagree and conclude that reversal is required even where evidence is contained in the record from which the Rowe factors of the number of hours and reasonable rate can be determined. See Hamlin (citing Hoffay v. Hoffay, 555 So.2d 1309 (Fla. 1st DCA 1990)); Wilkins v. Wilkins, 546 So.2d 44 (Fla. 4th DCA 1989); Gagnon; McCann v. McCann, 528 So.2d 976 (Fla. 2d DCA 1988).

Although the award of attorney's fees must be reversed and this case remanded to the trial court to make the appropriate findings, the former wife is not entitled to a second evidentiary hearing on the issue of fees upon remand. See Kranz v. Kranz, 737 So.2d 1198 (Fla. 5th DCA 1999); Warner (holding that remand for specific fact findings to support a fee award is not appropriate where the wife failed to put on any evidence to support the fee award in the first instance); see also...