Wendel v. Wendel

• Decision Date: 27 June 2003
• Docket Number: No. 2D01-292, No. 2D02-2301.
• Citation: 852 So.2d 277
• Parties: Ronald G. WENDEL, Appellant, v. Cindy H. WENDEL, Appellee.
• Court: Florida District Court of Appeals

852 So.2d 277

Ronald G. WENDEL, Appellant, v. Cindy H. WENDEL, Appellee.

Nos. 2D01-292, 2D02-2301.

District Court of Appeal of Florida, Second District.

June 27, 2003.

Rehearing Denied August 14, 2003.

Karol K. Williams of Karol K. Williams, P.A., Tampa, for Appellant.

Ralph L. Gonzalez of The Yerrid Law Firm, Tampa, for Appellee.

VILLANTI, Judge.

Ronald G. Wendel (the Former Husband) appeals two orders arising from postjudgment litigation regarding the dissolution of the Former Husband's marriage to Cindy H. Wendel (the Former Wife). We reverse both orders and remand for further proceedings.

The Former Husband and the Former Wife were divorced in 1994 pursuant to a final judgment of dissolution of marriage. The final judgment incorporated the parties' marital settlement agreement (MSA). Pursuant to the terms of the MSA, the Former Husband had primary residential custody of the parties' two minor daughters, and the Former Wife paid child support based on the statutory guidelines amount less forty percent.¹

In addition to the child custody and child support provisions, the M.S.A. contained two provisions dealing with enforcement and modification actions. Paragraph XIV of the M.S.A. provided:

XIV. MEDIATION OF DISPUTES. Any disagreement between the parties respecting any decision affecting the children or about the interpretation of this agreement or about the modification of this agreement will be resolved by mediation before taking legal action. Expenses for such mediation or legal action shall be shared equally by the parties.

Paragraph XV of the M.S.A. provided:

XV. MISCELLANEOUS

....

C. Should either party employ an attorney or attorneys to enforce any of the provisions hereof, or to protect its interest in any matter arising under this agreement, or to recover damages for the breach of this agreement, the party prevailing shall be entitled to recover from the other party, all reasonable costs, charges and expenses, including attorney's fees and costs, extended or incurred in connection therewith including through any appeal.

In 1998, the Former Husband filed a motion for contempt against the Former Wife based on her alleged failure to pay child support as agreed. The Former Husband's motion sought $27,300 in child support arrearages. In response to this motion, the Former Wife filed a petition seeking modification of child custody and guidelines child support from the Former Husband. The Former Husband then filed a counterpetition for modification of child support. In their respective petitions, both parties sought an award of attorney's fees. After an evidentiary hearing, the trial court granted the Former Wife's petition for modification of child custody and transferred primary residential custody of the two children to the Former Wife. The trial court also imputed income to the Former Husband and calculated his child support obligation based on that imputed income. Finally, the trial court denied the Former Husband's motion for contempt but awarded him $14,567 in past due child support.

The Former Husband appealed the trial court's order. Both parties sought attorney's fees on appeal pursuant to the terms of the MSA. This court affirmed the change in residential custody and the award of past due child support. Wendel v. Wendel, 805 So.2d 913 (Fla. 2d DCA 2001) (Wendel I). However, this court reversed the imputation of income to the Former Husband, finding that the evidence did not support the amount of income imputed. This court remanded the case to the trial court for a new hearing on the Former Husband's child support obligation. Addressing the attorney's fee motions, this court awarded the Former Husband attorney's fees as the prevailing party on the issue of child support. This court also awarded the Former Wife attorney's fees as the prevailing party on the issue of child custody.

While Wendel I was pending in this court, the trial court held a hearing on the parties' claims for attorney's fees incurred in obtaining the child custody and support ruling that was then on appeal. At the hearing, the Former Husband argued that his action for past due child support was an enforcement action subject to paragraph XV of the MSA, that he was the prevailing party on that issue, and that he was entitled to an award of his attorney's fees for litigating the child support issue. He also argued that the Former Wife's child custody petition was a modification action subject to paragraph XIV and that the parties should therefore share the attorney's fees for that action. In contrast, the Former Wife argued that both actions were enforcement actions subject to paragraph XV. She argued that she had prevailed on the child custody issues and that the Former Husband had not prevailed to any significant degree on the child support issue. Therefore, the Former Wife argued that she was entitled to an award of the entire amount of her attorney's fees as the prevailing party and that the Former Husband was entitled to no fee award. The trial court agreed with the Former Wife, awarding her the full amount of her attorney's fees and denying the Former Husband's motion for fees. In case number 2D01-292, the Former Husband appeals this order on attorney's fees.

Following this court's issuance of mandate in Wendel I, the Former Wife scheduled a new evidentiary hearing on the issue of child support and imputation of income to the Former Husband. At the hearing, the Former Wife presented the testimony of her economic expert, Dr. Mellish. Dr. Mellish testified that a reasonable amount of income to be imputed to the Former Husband would be $120,000 to $150,000 based on the Former Husband's age, legal education, and employment experience. Dr. Mellish based his opinion on job salary information that he had obtained from Internet research and other sources addressing Tampa Bay area earnings and job openings. Dr. Mellish admitted that he did not contact any of the employers he identified to determine whether they would be interested in hiring the Former Husband, and he offered no testimony regarding the salaries for the Internet job advertisements he located.

The Former Husband testified that he had earned $65,000 in 1994 as a lawyer with the Tew Zinober law firm but that the firm unilaterally reduced his salary to $50,000 in 1995. The Former Husband testified that he voluntarily left Tew Zinober in 1995 to take a better paying position with Raymond James. He was subsequently asked to leave his job with Raymond James, and he was terminated from a management level position with a subsequent employer due to that company's poor financial condition. He testified that he entered the real estate sales field in 2000 because he could not find other employment and felt that he would have more control over his continuing employment in that field. He testified that he has continually tried to obtain better paying jobs, including applying for attorney positions, banking positions, human resources positions, and customer relations positions. He sent out sixty to eighty resumes in 2001 without receiving a single response. The Former Husband admitted that his income had declined since 1995 but testified that it was starting to come back up from a low of $400 in 2000—his first year in real estate sales—to a net of $18,671 in 2001.

As to the amount of child support, the Former Husband argued that he should be entitled to the same forty percent reduction from the child support guidelines amount that the Former Wife had been enjoying since 1994. The Former Wife argued that the Former Husband should not be entitled to this reduction. She sought the full guidelines amount based on the income imputed to the Former Husband as well as the five percent differential allowed by the child support statute.

After considering this evidence, the trial court imputed $65,000 annual income to the Former Husband based on its finding that he "has the earning capacity at least equal to that which he had been earning at the Tew, Zinober law firm, which employment he voluntarily left to find a better job." The trial court refused the Former Husband's request to decrease the guidelines child support amount by forty percent because he spent "just less than 40% of the overnights" with his children. Finally, the trial court awarded collateral relief by requiring each party to pay fifty percent of the uninsured medical expenses, changing the parties' IRS exemptions retroactive to March 2000, and requiring the Former Husband to maintain $50,000 in life insurance coverage as security for his child support obligation. In case number 2D02-2301, the Former Husband appeals this order.

ATTORNEY'S FEE ORDER—CASE NUMBER 2D01-292

In the appeal of the attorney's fee order, the Former Husband argues that the trial court erred in interpreting and applying paragraphs XIV and XV of the MSA. The Former Husband contends that there are two attorney's fee provisions in the MSA—paragraph XIV which requires the parties to split fees in modification actions and paragraph XV which awards fees to the prevailing party in enforcement actions. He argues that the trial court erred in refusing to award prevailing party attorney's fees to him under paragraph XV for his child support enforcement action. He also argues that the trial court erred in awarding the Former Wife her attorney's fees as the prevailing party because her action was a modification action subject to paragraph XIV and so was subject to the fee-sharing provision of that paragraph.

The Former Wife contends that paragraph XIV does not include a provision for attorney's fees, and thus the only attorney fee provision in the M.S.A. is paragraph XV. She argues that the trial court properly awarded her attorney's fees because she was the prevailing party on the majority of the issues in the underlying litigation. While we agree with the Former Wife's interpretation of paragraph XIV, we disagree with the trial court's...