Viscito v. Viscito, 3D15-786.
Citation | 225 So.3d 959 |
Decision Date | 23 August 2017 |
Docket Number | No. 3D15-786.,3D15-786. |
Parties | Charles VISCITO, Appellant, v. Barbara VISCITO, Appellee. |
Court | Court of Appeal of Florida (US) |
Crabtree & Auslander and John G. Crabtree, Charles M. Auslander and Brian C. Tackenberg, for appellant.
Richard A. Schurr ; Christy L. Hertz, for appellee.
Before SUAREZ, LAGOA and SALTER, JJ.
On Motion for Review of Judgment Awarding Appellate Fees and Costs
Charles Viscito seeks review of a circuit court order and judgment awarding appellate attorney's fees and costs to the appellee, Barbara Viscito, pursuant to our opinion affirming the trial court's final judgment in the parties' dissolution of marriage case,1 and our order conditionally granting and remanding the motion for appellate attorney's fees. Mr. Viscito's motion is well taken; the trial court's order awarded Ms. Viscito $63,364.00 in appellate attorney's fees and $4,208.00 for costs without entering the findings required by Rosen v. Rosen, 696 So.2d 697, 700 (Fla. 1997), and section 61.16, Florida Statutes (2016).
Our order of December 21, 2016, specified that Ms. Viscito's motion for appellate attorney's fees was "conditionally granted and remanded to the trial court to fix amount pursuant to Rosen v. Rosen, 696 So.2d 697 (Fla. 1997)." Rosen requires a "need and ability to pay" analysis before an award is made. "Appellate attorney's fees are awarded on the basis of needs and ability to pay in family law cases and not on the prevailing party analysis." Phillip J. Padovano, 2 Fla. Prac., Appellate Practice§ 22:5, n. 5 (2016 ed.). Section 61.16(1) makes this assessment equally applicable to an award of costs as well as appellate attorney's fees, "unless an appellate party's cause is deemed to be frivolous." Our opinion in this appeal did not deem Mr. Viscito's arguments to be "frivolous."
A review of the hearing transcript shows that the trial court believed that this Court's December 21, 2016, order only required a determination as to reasonable fee amount. The language used by this Court (to "fix" an amount pursuant to Rosen ) may have led to this conclusion. At the fee and costs hearing, the former husband argued that the trial court was required under this Court's "conditional" grant of fees to consider first need and ability to pay, but the trial court would not hear argument on the issue as it was under the impression that it was only required to fix an amount.
As this Court explained in Randall v. Randall, 930 So.2d 840 (Fla. 3d DCA 2006), this Court may either grant appellate attorney's fees and remand for the trial court to assess a reasonable fee,2 or provisionally grant appellate attorney's fees and remand to establish entitlement under Rosen, but in either event, the Court's "order says so." Id. at 841.
And as the Fourth District Court of Appeal explained in Gerhardt v. Gerhardt, 738 So.2d 485, 486 (Fla. 4th DCA 1999), reiterating that Court's holding in White v. White, 683 So.2d 510, 512–13 (Fla. 4th DCA 1996) :
As already noted, this Court's December 21, 2016, order states that the attorneys' fees are ...
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Quigley v. Culbertson, 3D19-28
...3d DCA 2011). The fee award must be supported by competent, substantial evidence, and it was in this case. See Viscito v. Viscito, 225 So. 3d 959, 962 (Fla. 3d DCA 2017).1 The fact that one or more of the former wife's claims were termed "frivolous" or "vexatious" in the final order does no......
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