Warner v. Warner, No. 96-2235

• Court: Court of Appeal of Florida (US)
• Writing for the Court: GOSHORN; PETERSON, C.J., and DAUKSCH
• Citation: 692 So.2d 266
• Decision Date: 25 April 1997
• Docket Number: No. 96-2235
• Parties: 22 Fla. L. Weekly D1060 Mark WARNER, Appellant/Cross-Appellee, v. Deborah Elaine WARNER, Appellee/Cross-Appellant.

Page 266

692 So.2d 266 22 Fla. L. Weekly D1060 Mark WARNER, Appellant/Cross-Appellee,
v.
Deborah Elaine WARNER, Appellee/Cross-Appellant. No. 96-2235. District Court of Appeal of Florida,
Fifth District. April 25, 1997.

Page 267

Timothy R. Askew, Jr., Sanford, for Appellant/Cross-Appellee.

Patricia L. Strowbridge of Patricia L. Strowbridge, P.A., Law Offices of Strowbridge & Newnum, Orlando, for Appellee/Cross-Appellant.

GOSHORN, Judge.

In this appeal and cross-appeal of the final judgment dissolving the marriage between Mark Warner [husband] and Deborah Warner [wife], the parties allege error in the trial court's decision on the issues of attorney's fees, imputation of income to the husband, distribution of the proceeds of an employment buy-out agreement, the husband's obligation for the children's medical expenses, child support arrearages, and interest on the payments of equitable distribution, child support arrearages and attorney's fees. For the reasons that follow, we affirm in part and reverse in part.

The parties were married in July 1975 and had two daughters, Kelly (born June 13, 1981) and Meredith (born October 27, 1987). They separated in April 1991 and divorced in June 1996. The husband's employment history is mercurial. He has been employed by a number of different advertising firms, and, in the past five years, his earned income has ranged from zero (a period of unemployment) to $80,000. At the time the dissolution judgment was entered, the husband was earning $42,000 in his own advertising firm. The wife's poor health precludes her from being employed. The Social Security Administration has declared her permanently and totally disabled and pays her disability benefits of $470 per month, plus medical coverage.

Pre-dissolution, the husband was ordered to make temporary child support payments. In May 1994, the husband became employed at an annual salary of $55,000, triggering the wife to seek upward modification of the temporary child support award. The trial court denied the wife's motion and the wife appealed to this court. See Warner v. Warner, 659 So.2d 1237 (Fla. 5th DCA 1995) (reversing the denial of the modification petition; holding that the child support guidelines applied in temporary support situations). Upon remand, the trial court set child support arrearages at $11,910.03.

Following the dissolution hearing, the trial court concluded that the husband was capable of earning $70,914, the amount of the husband's gross income for 1995, and imputed that amount to the husband for the purposes of determining alimony, child support, support arrearages, and an award of attorney's fees. Permanent alimony was set at $1.00 per month, with the court reserving jurisdiction to increase the award when and if the husband gained the ability to pay more. The husband was ordered to pay the child support arrearage at the rate of $200 monthly without interest. He was also ordered to maintain medical insurance on the children and to reimburse the wife 100 percent of all out-of-pocket medical expenses. The court found the $36,000 buy-out the husband received from his former firm, Warner, Gallaspy and Lobel [WGL], was a marital asset and ordered the husband to pay the wife $18,000 at the rate of $350 per month without interest. Finally, as to attorney's fees, the husband was ordered to pay the wife's attorney $500 per month until he had paid the full $38,000 that the court found was owed. No interest was ordered on the fee obligation.

ATTORNEY'S FEES

The only evidence with regard to the wife's attorney's fees was the wife's testimony that she lacked the ability to pay her own fees, which she placed at "about $38,000." The trial court found that the wife's attorney's fees of $38,000 were reasonable and that the wife had a need for fees and the

Page 268

husband had the ability to pay the fees. The court made no findings as to the number of hours reasonably expended or an hourly rate. The court's failure to make those findings was error. See Abernethy v. Fishkin, 638 So.2d 160 (Fla. 5th DCA 1994) (holding that reversal is required where a trial court fails to make specific findings as to the reasonable number of hours expended and the reasonable hourly rate as mandated by Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1150-51 (Fla.1985)), disagreed with on other grounds, Kelson v. Kelson, 675 So.2d 1370 (Fla.1996); see also Sunday v. Sunday, 610 So.2d 62 (Fla. 3d DCA 1992) (entry of fee award without a determination of reasonable rate and hours expended requires remand).

Remand for the requisite findings is not appropriate here because the wife failed to bring forth any evidence to support such findings. ¹ See Davis v. Davis, 613 So.2d 147 (Fla. 1st DCA 1993) (holding that while remand is appropriate where the record may contain substantial competent evidence to support findings as to the Rowe factors, reversal is required where the record is devoid of any evidence to support the award of attorney's fees); Wiley v. Wiley, 485 So.2d 2 (Fla. 5th DCA 1986) (holding that because the wife failed to present any evidence as to the legal services performed in the trial...