Tucker v. Tucker
| Decision Date | 02 October 1987 |
| Docket Number | No. 86-1831,86-1831 |
| Citation | 12 Fla. L. Weekly 2353,513 So.2d 733 |
| Parties | 12 Fla. L. Weekly 2353 W. Mark TUCKER, Appellant, v. Carolyn B. TUCKER, Appellee. |
| Court | Florida District Court of Appeals |
A. Ann Arledge and David A. Maney of Maney, Damsker & Arledge, P.A., Tampa, for appellant.
Martha-Irene Weed of Mitcham, Weed, Barbas, Allen & Morgan, and Stevan T. Northcutt of Levine, Hirsch, Segall, Northcutt & Hanlon, P.A., Tampa, for appellee.
The ex-husband, W. Mark Tucker, appeals from the trial court's order awarding nearly $32,000 in attorney's fees, accounting fees and costs to the ex-wife.
To achieve the resolution of their marital difficulties, the ex-husband and his ex-wife entered into a comprehensive settlement agreement on the eve of the final hearing. That agreement embodied an understanding that the ex-husband would be responsible for "a reasonable attorney's fee" to be paid the ex-wife. At the final hearing, devoted solely to the question of fees to be paid the ex-wife, counsel for the parties tendered proof in support of their respective positions. The testimonial evidence described an attorney's fee ranging from $5,100 to approximately $27,000. The trial court awarded the ex-wife an attorney's fee in the amount of $25,000, accounting fees in the amount of $6,425 and court costs totaling $502.15. The ex-husband's challenge to the trial court's order, confined to the amount of attorney's fees granted the ex-wife, is bottomed upon two contentions; 1) that the ex-husband's financial ability, excluded from proof by the trial court, was a proper subject for consideration in determining the amount of the attorney's fee to be awarded the ex-wife and 2) the failure of the ex-wife's counsel to provide the actual time records developed in the course of representing the ex-wife. We reverse.
Before turning to a consideration of the ground upon which we reverse the trial court's order, we are moved to observe that the ex-husband's attack upon the trial court's refusal to receive evidence bearing upon his financial status, as it would affect his agreement to pay a reasonable fee, fails to include any reference to our decision in Borowiak v. Borowiak, 341 So.2d 286 (Fla. 2d DCA 1977), in which it is stated that "[i]n light of the agreement, appellant's financial need and appellee's ability to pay [are] not relevant considerations." 341 So.2d 287. In the face of Borowiak and the absence of a compelling reason offered by the ex-husband to depart from its language, we reject his quarrel with the trial court's evidentiary ruling. In doing so, however, we do not ignore the imperative that a trial court's discretionary power to award an attorney's fee is at all times governed by a standard of reasonableness. See, e.g., Rule 4-1.5(B), Rules Regulating the Florida Bar. In the present context, the question of whether the trial court's grant of a $25,000 fee to the ex-wife was reasonable can be reached without regard to the ex-husband's ability to pay that amount; a reasonable fee is to be measured and assessed pursuant to the principles enunciated in Florida Patients Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). This court has made plain that Rowe is applicable to attorney fee determinations undertaken in the course of dissolution proceedings, Winterbotham v. Winterbotham, 500 So.2d 723, 724 (Fla. 2d DCA 1987), and we have said that compliance with Rowe requires specific findings as to the reasonable hourly rate and the reasonableness of the hours expended. Boyle v. Boyle, 485 So.2d 879 (Fla. 2d DCA 1986). See also Glades, Inc. v. Glades Country Club Apts. Ass'n., Inc., 502 So.2d 1368 (Fla. 2d DCA 1987); Shields v. Shields, 502 So.2d 1349 (Fla. 2d DCA 1987); Manuel v. Manuel, 498 So.2d 1369 (Fla. 1st DCA 1986). Our review of the record...
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...the more well-reasoned decision and is more consistent with the public policy of this state, was cited with approval in Tucker v. Tucker, 513 So.2d 733 (Fla. 2d DCA 1987). In Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla.1980), the supreme court expressly recognized the underlying ratio......
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