Opinion
No. 1D18-3855
11-02-2022
Robert B. FINCH, Former Husband, Appellant, v. Terri CRIBBS f/k/a Terri C. Finch, Former Wife, Appellee.
William S. Graessle and Jonathan W. Graessle of William S. Graessle, P.A., Jacksonville, for Appellant. Rebecca Bowen Creed and Aaron Sprague of Creed & Gowdy, P.A., Jacksonville, for Appellee.
On appeal from the Circuit Court for Duval County. Lance M. Day, Judge.
William S. Graessle and Jonathan W. Graessle of William S. Graessle, P.A., Jacksonville, for Appellant.
Rebecca Bowen Creed and Aaron Sprague of Creed & Gowdy, P.A., Jacksonville, for Appellee.
Per Curiam.
Robert Finch appeals orders finding him in contempt and ordering various sanctions for his discovery failures and non-payment to his former wife, Terri Cribbs. We affirm.
I.
In March 2014, by consent final judgment and settlement agreement, the trial court dissolved the marriage of Robert and Terri. The consent agreement required Robert to pay Terri $2,600 per month in permanent alimony and to repay a personal loan to her at $1,031.63 per month.
By May 2016, Terri had moved to hold Robert in contempt; she argued her former husband was not paying the stipulated alimony nor the loan payment. Just before a hearing on that motion, the parties entered into a second consent order to resolve the contempt motion. Robert consented to pay a lump sum of $5,000, pay his remaining $18,000 of arrearages at $5,996 per month, and continue his previously required payments beginning the next month.
A year later, Terri again moved for contempt for non-payment, and she sought financial discovery. Robert moved to modify his obligations, generally contending he could not financially afford to pay the amounts he had twice consented to pay. For the next year, Robert largely failed to turn over financial documents, and his arrears reached $100,000. Also, the court had sanctioned Robert for his repeated failure to comply with discovery by granting Terri attorney’s fees in an amount to be determined later, by dismissing Robert’s modification petition without prejudice, and by threatening jail and monetary penalties.
At the May 2018 final hearing, Terri testified to Robert’s non-payment; and she had a financial expert testify to her former husband’s income. The expert explained that Robert owned a business, and the records presented to the expert showed significant assets flowing from the business to Robert personally—without any indication that the monies were then put back in the business as business assets. The expert also testified Robert had used business credit cards for personal expenses, including vacations.
Robert took the stand and testified that his business was on the verge of bankruptcy. He claimed that he was relegated to "COD," or cash-only deals, and the large withdrawals were for business purposes. However, he could not provide receipts for any purchases and did not specifically remember specific transactions. He explained he moved money from the business account to his personal account so business creditors could not reach the money, but the money was nevertheless business money. He acknowledged he used business credit cards for personal trips and over-the-counter withdrawals to pay his legal fees. Finally, Robert testified he flew from South Florida to Jacksonville for the hearing and had $2,200 in cash in his wallet—from a recent business sale, though he did not have a receipt for it.
The court rendered its final order in August 2018. In the order, the court recounted in detail the history of consent orders requiring Robert to pay certain monies, his failures to do so, further consent orders, further failures to pay, and contempt and enforcement motions. This led the court to conclude that Robert "had no intention of ever abiding by the repayment schedule to which he expressly agreed." The court found persuasive the expert’s testimony about Robert’s significant income and assets derived from the business, and it found Robert’s testimony that his business was performing "poorly" to be not credible. The court in turn found that Robert at all times had the ability to pay, but that he willfully failed to do so. The court cited Robert’s cash-on-hand at the final hearing and transfers from the business totaling over $400,000. The court reviewed the documents and testimony and found that Robert had a monthly income of over $15,800, and after expenses, that he had over $11,300 to pay towards his obligations to Terri.
The court credited Robert’s previous payments to the loan arrearage, which brought that amount current, and found Robert was over $69,000 in arrears as to alimony. The court ordered Robert to pay $29,289.87 in attorney’s fees as a sanction under Florida Family Law Rule of Procedure 12.380. And the court noted it had previously ordered Robert to turn over discovery or pay $500 per day (up to thirty days) as a contempt sanction, which amounted to $14,500. The court ordered that Robert either pay the attorney’s fees and contempt sanction within the next sixty days or face jail time; and the court specifically found that Robert had the ability to pay this purge amount.
II.
Robert raises three issues. He argues that there was not sufficient evidence to support a finding that he could pay the contempt purge amount and Terri’s attorney’s fees; that the multiple sanctions of the fine, attorney’s fees, and dismissal of his modification pleading were improper; and that applying his previous payments to the loan arrears rather than alimony arrears was error. We affirm on all three.
A.
[1–4] We first consider Robert’s challenge to the contempt order. Typically, we presume such an order to be correct on appeal and do not disturb the order unless there is no competent, substantial evidence in the record to support it. See Williams v. Williams, 152 So. 3d 702, 704 (Fla. 1st DCA 2014). The trial court must base a purge amount on the contemnor’s present ability to pay. See Bowen v. Bowen, 471 So. 2d 1274, 1280 (Fla. 1985); Fla. Fam. L. R. P. 12.615(e). In determining the contemnor’s present ability to pay, "the trial court is not limited to the amount of cash immediately available to the contemnor; rather, the court may look to all assets from which the amount might be obtained." Bowen, 471 So. 2d at 1279. This means a trial court is not cabined by what it suspects is the under-reported income of a self-employed spouse, especially when that spouse has failed to disclose the pertinent financial information to back up his claim. Where the self-employed spouse’s own misconduct is responsible for the inability of the trial court to accurately determine his income, he cannot then be heard to complain about the trial court’s reliance on evidence of unexplained withdrawals from his business and indicators of his comfortable lifestyle that contradict his claimed inability to pay. The trial court has the discretion to consider the self-employed spouse’s available business assets in these circumstances when making its present-ability-to-pay determination. Cf. Gibbs v. Gibbs, 320 So.3d 870, 872–73 (Fla. 1st DCA 2021); see Newman v. Newman, 221 So. 3d 642, 644–45 (Fla. 4th DCA 2017); Harris v. Millett-Harris, 900 So. 2d 712, 713 (Fla. 3d DCA 2005).
Here, there was ample evidence for the trial court to find that Robert had the ability to pay the purge of the attorney’s fees and contempt sanctions. Before the trial court, there were financial records showing Robert took large sums of money from his business and put that money into his personal account—without documentation or credible testimony that the money was then reused for business purposes. There also was the testimony from Terri’s expert that Robert had immediate access to significant personal funds through the business. The trial court observed that Robert carried significant sums of cash on him—without documentation or credible testimony that it in fact was business money. There of course was evidence that Robert repeatedly moved monies to avoid detection and creditors. Finally, the trial court found that Robert’s testimony itself was not credible.
Robert hastens to highlight his testimony about how the business was failing and the money was business money, but the court rejected this because it was not believable. That there may have been some evidence to support Robert’s view does not obviate the evidence on which the trial court relied that showed the opposite view. The trial court, then, had competent, substantial evidence to support its finding as to Robert’s ability to pay the purge amount. [5] Robert also challenges the contempt order’s requirement that he pay Terri’s attorney’s fees incurred in bringing the enforcement action. He contends that the trial court did not engage in a full assessment of Terri’s need versus his ability to pay. First of all, the trial court did engage in this assessment, and there was competent, substantial evidence showing a disparity in the former spouses’ income to support the trial court’s assessment of attorney’s fees. Indeed, at the time of the hearing, Terri had been laid off from her job as an administrative assistant (making $14.00 an hour), but Robert’s net monthly income was around $11,000.
Moreover, the trial court in part awarded attorney's fees as a sanction for discovery violations. See Fla. Fam. L. R. P. 12.380(a)(4), (b)(2) (permitting, and in some instances requiring, the court to award fees to a party that fails to respond to discovery requests). As a sanction, the rule does not require a determination of relative ability to pay. Fair to note here that Robert had more than a year to respond to discovery requests, and Terri had moved multiple times to hold Robert in contempt for his failures. Robert finally provided some discovery; but at the hearing, it was apparent there was more that Robert had still not provided. For example, documents showing sales and the purposes for which Robert was moving monies, which Robert stated he could provide, but had not. Given Robert’s repeated failures over a long period of time, it was not unreasonable or arbitrary for the court to have awarded Terri fees for her continued actions to obtain Robert’s compliance.
B.
[6, 7] We turn to Robert’s challenge to the trial court’s imposition of sanctions for his discovery violations. This we review for abuse of discretion. See Thurman v. Thurman, 637 So. 2d 64, 65 (Fla. 1st DCA 1994); cf. Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). Those sanctions, under rule 12.380, may be cumulative—and Robert does not argue otherwise. See Fla. Fam. L. R. P. 12.380(b) (explaining attorney’s fees may be imposed instead of or in addition to other available sanctions). Robert only makes the equitable argument that multiple sanctions in this instance were too much, especially including the ultimate sanction of dismissal. We disagree.
The court here reviewed the case history, Robert’s two agreed-upon orders to pay Terri certain amounts, his continuing failures to pay or provide ordered discovery, his finances, his non-credible testimony about his financial picture, and his movement of funds to avoid creditors, Given this, the court’s cumulative sanctions are not unreasonable. While a different trial court may have approached sanctions differently under similar circumstances, we cannot say that no reasonable judge would have ordered the multiple sanctions imposed here. We do note that the court dismissed Robert’s modification request without prejudice, such that he could refile if his circumstances change and he could show an inability to pay.
C.
[8] Finally, we consider Robert’s challenge to the manner in which the trial court applied payments he had made towards his overall arrearages. He argues that the court was required to apply those monies to alimony arrearages first, and then to the personal loan. He fails to cite to any authority for this alleged requirement. So, once again, we disagree.
A trial court has broad discretionary authority in matters like this. Cf. Canakaris v. Canakaris, 382 So. 2d 1197, 1202–03 (Fla. 1980) (noting the "broad discre- tionary authority" that trial courts have in dissolution proceedings with respect to apportioning assets, providing for spousal support, doing equity between the parties, and fashioning various remedies). Absent any statute or rule that requires that a trial court apply payments to alimony arrearages before applying them to a personal loan arrearage, we cannot say the trial court abused its discretion. See id. (explaining judicial discretion vis-à-vis a failure to apply a correct legal rule). The court applied the money so that the entirety of Robert’s loan arrearage was brought current. This is a reasonable choice. Merely arguing, as Robert does, that the court could have applied the payments differently does not show an abuse of discretion.
III.
There was competent, substantial evidence for the court to find Robert had the ability to pay the purge and Terri’s attorney’s fees; the court did not abuse its discretion in rendering multiple sanctions for Robert’s continued contumacious actions; and the court did not abuse its discretion in allocating Robert’s past payments towards his loan arrearage.
Affirmed.
Ray, C.J., and Rowe and Tanenbaum, JJ., concur.
On Motion for Rehearing or Clarification
Tanenbaum, J.
The former husband moves for rehearing or clarification, but his motion addresses just this court’s post-disposition order remanding to the trial court the former wife’s motion for appellate attorney’s fees. The former husband posits a fair question: Why did we remand with a statutory reference (section 61.16(1), Florida Statutes) to the continuing jurisdiction of a trial court to award temporary appellate fees, even though our affirmance brought the appeal to a close? As the former husband notes, this court on previous occasions has issued a "Dresser order," which makes a "provisional" grant and sends the motion to the trial court (so still a remand) for a determination on the merits under the same statute we referenced in our order. We deny the request for rehearing but grant the request for clarification so that we can explain.
This refers to Dresser v. Dresser, 350 So. 2d 1152 (Fla. 1st DCA 1977).
"Provisional" means temporary, so a temporary grant does not have any formal effect. It does nothing to dispose of the request for relief.
The parties in this case dissolved their marriage by a consent judgment. In that judgment, the former husband was to pay monthly permanent alimony and make monthly payments to the former wife toward an outstanding loan. Of course, the division of the marital estate and the fair distribution of the parties’ assets and liabilities was conclusively determined by the trial court and was not at issue in this case. This appeal instead concerned a subsequent contempt order against the former husband for his failure to make the payments required by the consent judgment. As part of that order, the trial court awarded the former wife all her fees and costs incurred "as a sanction pursuant to Florida Family Law Rule of Procedure [ ] 12.1380 for [the former husband’s] purposeful failure to comply with his financial obligations." We affirmed that order.
After she submitted her answer brief, the former wife submitted a motion for appellate attorney’s fees. She does not seek fees as an additional sanction. Instead, she seeks them pursuant to section 61.16, Florida Statutes, claiming that there is a "substantial disparity in the parties’ income," that she "has a financial need for an award of her reasonable attorney’s fees," and that the former husband "has the superior financial ability to pay those fees." The motion does not explain why the former wife did not seek temporary appellate fees in the trial court to assist in securing counsel, or why she needed this court to weigh in on the issue.
The former husband is correct to mention the first sentence of subsection one of section 61.16, Florida Statutes. It does say: "The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals…." § 61.16(1), Fla. Stat. (emphasis supplied). There is no doubt that we have the authority to grant such a request. Since the late nineteenth century, the Florida Supreme Court has claimed for itself, as an appellate court, this authority to award fees to spousal litigants in need of counsel on appeal. See, e.g., Prine v. Prine, 36 Fla. 676, 18 So. 781, 784–85 (1895) (explaining that an appellate court has the authority to grant suit money for an appeal as "essential to the proper and impartial administration of justice in the exercise of our appellate jurisdiction," but denying the request for failure of proof as to the value of counsel’s services and the amount of "reasonable suit money"); Duss v. Duss, 92 Fla. 1081, 111 So. 382, 386 (1926) (noting that an appellate court, "in proper cases, and upon an adequate showing of necessity and ability to pay," may decree payment of an appellate fee "for services already rendered," but denying the request because it failed to explain why it was not "seasonably made"); Phifer v. Phifer, 124 Fla. 223, 168 So. 9, 10 (1936) (remarking that "[i]t is undoubtedly within the power and jurisdiction of the Supreme Court to order" payment of fees from one former spouse to another to assist on appeal).
This claim by the court of equitable authority stemmed from necessity. At the time, once an appeal was taken in a dissolution case, the chancery or equity court lost jurisdiction over the parties and subject matter, and the supreme court (before there were intermediate courts) acquired exclusive jurisdiction. See State ex rel. Shrader v. Phillips, 32 Fla. 403, 13 So. 920, 921 (1893) (observing that "where an appeal and supersedeas [regarding divorce decree] have been effected, the jurisdiction of the appellate court attaches, and its jurisdiction is then exclusive"); Prine, 18 So. at 784 (noting that in Florida, once a dissolution case is on appeal, the trial court "was without power or jurisdiction to entertain proceedings for alimony or suit money"); Horn v. Horn, 73 So. 2d 905, 906 (Fla. 1954) (explaining that the filing of an appeal "transferred jurisdiction of the parties and of the subject matter to this Court"). Without a statutory grant of authority, after an appeal is taken in a dissolution proceeding, the trial court was "wholly without power to enter [an] order requiring the payment of counsel fees and costs in connection with the appeal." Horn, 73 So. 2d at 906; see Phillips, 13 So. at 921 (mentioning with approbation a statement from the Illinois Supreme Court "that, but for a statutory provision expressly giving the power, there would be no hesitation in holding that the trial court had no power after the consummation of the appeal to allow the wife solicitor’s fees for service in the appellate court" (emphasis supplied)).
[9] Since early days, though, the supreme court has characterized a spouse’s right to "the aid of counsel learned in the law and acquainted with her case" as the most important of the rights possessed by that spouse. Prine, 18 So. at 784. "Without such aid the court must perform the double and inconsistent functions of court and counsel, or she, with no knowledge of the principles or experience in the practice of the law, must cope with" able opposing counsel. Id. The supreme court reasoned at the time that if the trial court loses the authority to consider appellate fees once the appeal is taken and the appellate court does not have the authority to consider a request for those fees as part of an award of suit money, then "no such power is vested in any court, and a great and humane principle of the law would, so far as it relates to cases on appeal, be practically abolished in this state." Prine, 18 So. at 784–85. To resolve this tension, the supreme court has said that "[i]f necessity existed for such temporary counsel fees, the proper forum, under numerous precedents, is in this Court." Horn, 73 So. 2d at 906.
Indeed, the purpose behind section 61.16 is to ensure that both spouses "will have reasonably the same ability to secure competent legal counsel." Cummings v. Cummings, 330 So. 2d 134, 136 (Fla. 1976) (citation omitted); see also Canakaris v. Canakaris, 382 So. 2d 1197, 1205 (Fla. 1980) (same); cf. Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 835 (Fla. 1990) (noting that a "significant purpose of this fee-authorizing statute is to assure that one party is not limited in the type of representation he or she would receive because that party’s financial position is so inferior to that of the other party").
[10, 11] We have no basis for doubt that this authority still exists with us. If a spouse or former spouse has a need for this court to award temporary fees, she can say so in a motion filed pursuant to Florida Rule of Appellate Procedure 9.400(b). Such a motion, however, is not a prevailing-party fee motion; it is a motion seeking our intervention on an interim basis to aid the spouse in acquiring (or keeping) the aid of capable appellate counsel. We cannot think of a reason for why such a motion should just sit quietly on our docket while the appeal progresses to disposition, so assuming that the movant is truly in need, he or she should file the motion early and flag the motion as one requiring the court’s immediate consideration. The motion also needs to be more than just a bare-bones, pro forma one; it should explain the nature and extent of the need, include evidence of the amount of the reasonable fee charged by or already paid to counsel, and address the parties’ respective financial abilities. Cf. Prine, 18 So. at 785 (denying fee request because the movant did not furnish "proof of her own necessities for support, as well as the means and ability of the appellant to contribute to such support during the pendency of the case here," and did not offer "any proof as to the value of services of her solicitor in the necessary proceedings here, or as to what would be reasonable suit money in this court"); Sierra v. Sierra, 505 So. 2d 432, 434 (Fla. 1987) (holding that an appellate court cannot award appellate fees in a dissolution case without there being proof going to reasonableness and necessity, and directing appellate courts either to remand the matter to the trial court for a determination or "provide a method for receiving evidence by affidavit or otherwise on this issue in the appellate court"). Finally, if the movant is the appellant, he or she "must assume the burden of showing, as a predicate for the granting of the application, that the appeal is taken in good faith and likely to be well founded" because the request "is addressed to the sound discretion of the appellate court." Troeger v. Troeger, 127 Fla. 53, 172 So. 473, 473 (1937); see also id. (requiring an applicant, whether the appellant or the appellee, "to demonstrate to the appellate court that … [the spouse] is without such means, and must have learned counsel in order to properly present her defense … for the proper and impartial administration of justice" (citing Prine)).
We do not eschew our responsibility to consider such a motion when filed, especially when its urgency is brought to our attention. At the same time, since 1994 at least, there no longer is a need for appellate involvement on this front in most dissolution matters. It was in that year that trial courts acquired the authority in dissolution cases that the supreme court historically had observed was lacking. The Legislature added the following language to section 61.16:
The trial court shall have continuing jurisdiction to make temporary attorney’s fees and costs awards reasonably necessary to prosecute or defend an appeal on the same basis and criteria as though the matter were pending before it at the trial level…. In determining whether to make attorney’s fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties, unless an appellate party’s cause is deemed to be frivolous.
§ 61.16(1), Fla. Stat. (emphasis supplied); see ch. 94-169, § 1, at 1039, Laws of Fla. (amending § 61.16(1), Fla. Stat.). After this amendment, the trial court clearly has jurisdiction to consider and award appellate attorney’s fees while the appeal is pending, and the spouse in need of fees does not have to wait until the conclusion of the appeal to get them. See Fla. R. App. P. 9.600(c)(1) (recognizing that the trial court retains jurisdiction in family law matters to award fees "reasonably necessary to prosecute or defend an appeal" and to make "other awards necessary to protect the welfare and rights of any party pending appeal").
[12–14] In a similar vein, as we already mentioned, a fee award under section 61.16 is not a prevailing-party award; it is an award in equity to aid a spouse in need. Because the trial court now has the independent authority to award appellate fees while the appeal is pending, there is no need for some pre-authorization from the appellate court to award those fees. See Erskine v. Erskine, 344 So. 3d 566, 576 (Fla. 1st DCA 2022) ("The trial court did not need authorization from this court before it determined whether the wife needed suit money to help pay for her appellate counsel to assist in the defense of the husband’s appeals [pursuant to section 61.16(1), Florida Statutes]."). That means a spouse in need of a lawyer to assist on appeal does not need to come to us at all to have that need addressed. She, of course, still can make the fee request to us, but she now has the option of making the fee request to the trial court while the appeal is pending. There also is nothing that says she cannot wait until the appeal is over to make the request, and the first sentence in section 61.16(1) is broad enough to allow the trial court to consider such a fee request at the back end of the case, if somehow the need for fees did not arise until that point in the case.
[15] As we noted above, a "provisional" grant of a motion does not really do anything. It is a fiction. With the 1994 amendment to section 61.16—establishing the trial court as an option for a spouse in need of appellate fees—there no longer is much of a role for an appellate court to play regarding those fees. We still are here to handle a request for fees under section 61.16 if there is a need for us to be involved, but filing a motion for fees in this court is not a prerequisite for seeking appellate fees under section 61.16 in the trial court. That means "authorization" from us (presumably through a provisional grant) also is not required for the trial court to consider the fee question. With all this in mind, now that the appeal is over, we do not see from the face of the former wife’s motion for fees what it is that we can contribute to the fee determination that the trial court cannot. We do not have any evidence before us regarding need, ability to pay, or the amount of fees being claimed, and the trial court now is in a better position to make the factual determinations necessary to decide the motion.
[16] We recognize that consideration of the former wife’s fee request no longer would be pursuant to the 1994 language, as that sentence addresses temporary fees. Our reference to the sentence added to section 61.16 in 1994 was done with the intent of reminding the parties that the trial court was available all along to address any urgent need for fees. Admittedly, we also should have referenced the first sentence of section 61.16(1). At this point, "after considering the financial resources of both parties," the trial court will have to consider the former wife’s fee request and make a fee determination based in part on the former wife’s need to avoid seeing her fee bill diminish the financial position the alimony payments were supposed to put her in. This consideration must be made in the light of the former husband’s conduct necessitating the contempt order in the first place. Cf. Canakaris, 382 So. 2d at 1205 (observing that an award of fees could be appropriate "to avoid an inequitable diminution of the fiscal sums granted the wife in these proceedings").
Because we had nothing to add to the consideration of the former wife’s request for fees—indeed, there is nothing we could do at this point to get the former wife the fees she ostensibly needs any faster than the trial court could—we simply remanded the motion to the trial court now that the appeal is over.
Motion Granted as to Clarification; Denied as to Rehearing.
Rowe, C.J., and Ray, J., concur.