Summary
reversing attorney's fees award for failure to make Rowe findings
Summary of this case from Livingston v. StateOpinion
Case No. 2D18-4858
08-12-2020
Paul A. JACOBS, Appellant, v. Renee M. JACQUES f/k/a Renee M. Jacobs, Appellee.
Stacy L. Haverfield of Stacy L. Haverfield, P.A., Cape Coral, for Appellant. Renee M. Jacques, pro se.
Stacy L. Haverfield of Stacy L. Haverfield, P.A., Cape Coral, for Appellant.
Renee M. Jacques, pro se.
LaROSE, Judge.
Paul A. Jacobs (Former Husband) challenges the trial court's postdissolution contempt order and award of fees and costs to Renee M. Jacques (Former Wife). The order is legally deficient for lack of findings on those points. Thus, we reverse and remand for further proceedings. We affirm as to the other issues raised on appeal without further comment.
We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A).
I. Background
The parties' marital settlement agreement (MSA) required the Former Husband to make biweekly alimony payments of $1000 to the Former Wife for eight years. The trial court ratified the MSA and adopted it in the final dissolution judgment.
The Former Wife later moved for enforcement and contempt, alleging that the Former Husband failed to pay alimony. She also requested attorney's fees and costs.
The trial court held an evidentiary hearing. No court reporter was present. The unsigned hearing minutes state that "[t]he court found that the Former Husband has the ability to pay the $1000 bi-weekly to the Former Wife and that she is in need of the same." In its written order, the trial court granted the Former Wife's motion for contempt and enforcement, awarded her $750 in attorney's fees, and awarded her $600 for her travel costs. The Former Husband unsuccessfully moved for a rehearing and then appealed.
II. Analysis
The Former Husband argues that the contempt order is erroneous because it lacks written findings that he had the ability to pay alimony and willfully failed to do so. See Fla. Fam. L. R. P. 12.615(d). The Former Husband also argues that the trial court abused its discretion in awarding attorney's fees and costs. He maintains that the trial court failed to make specific findings as to the parties' relative financial positions pursuant to section 61.16, Florida Statutes (2019), and to make sufficient findings as to attorney's fees under Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985).
A contempt order is typically "clothed with a presumption of correctness and will not be overturned unless ... the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error." Napoli v. Napoli, 142 So. 3d 953, 954-55 (Fla. 4th DCA 2014) (quoting DeMello v. Buckman, 914 So. 2d 1090, 1093 (Fla. 4th DCA 2005) ). Similarly, we review "an award of attorney's fees ... for abuse of discretion." Ingram v. Ingram, 277 So. 3d 718, 718-19 (Fla. 2d DCA 2019) (quoting Arena v. Arena, 103 So. 3d 1044, 1045 (Fla. 2d DCA 2013) ). The "appellant has the burden to submit to the appellate court a record adequate to support the appeal." Bei v. Harper, 475 So. 2d 912, 914 (Fla. 2d DCA 1985) (citing Wright v. Wright, 431 So. 2d 177 (Fla. 5th DCA 1983) ).
In lieu of a transcript, our record includes a statement of judicial proceedings adopted by the trial court. See generally Fla. R. App. P. 9.200(b)(5) ("If no report of the proceedings was made, or if the transcript is unavailable, a party may prepare a statement of the evidence or proceedings from the best available means, including the party's recollection. The statement shall be served on all other parties, who may serve objections or proposed amendments to it within 15 days of service. Thereafter, the statement and any objections or proposed amendments shall be filed with the lower tribunal for settlement and approval."). The statement is of little use to us. There is no indication that the parties and the trial court followed the procedures outlined in rule 9.200(b)(5). See, e.g., State, Dep't of Health & Rehab. Servs. v. Christman, 635 So. 2d 94, 95 (Fla. 1st DCA 1994) ("We cannot accept the submitted statement in lieu of a transcript because it does not comply with rule 9.200(b) [where there was] no confirmation that the Christmans were afforded an appropriate opportunity to be heard as to the content of the statement."). Further, the statement is unclear regarding the evidence presented below and appears to omit portions of the trial court's findings and rulings. See Bei, 475 So. 2d at 915 (concluding that the record was inadequate where the approved statement was "deficient" and "recite[d] only segments of the trial proceedings"); Starks v. Starks, 423 So. 2d 452, 453 (Fla. 1st DCA 1982) (concluding that the stipulated statement was deficient where it "fail[ed] to recite the facts presented to the lower court"). For example, the statement indicates that the attorneys questioned the Former Husband but fails to detail his answers. The statement also omits supposed trial court findings that are included in the minutes. Accordingly, we are left only to review the order on appeal to ensure that it contains the required written findings. See Napoli, 142 So. 3d at 954 n.1 ("Because there is no transcript of the contempt proceeding, we are unable to review the evidence presented or any of the findings made by the trial court during the hearing. However, even without a transcript, we can still review the trial court's written contempt order to make sure that it contains the required findings.").
A. Contempt Order
Rule 12.615(d)(1) provides:
(d) Order and Sanctions. After hearing the testimony and evidence presented, the court shall enter a written order granting or denying the motion for contempt.
(1) An order finding the alleged contemnor to be in contempt shall contain a finding that a prior order of support was entered, that the alleged contemnor has failed to pay part or all of the support ordered, that the alleged contemnor had the present ability to pay support, and that the alleged contemnor willfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based.
See also Browne v. Blanton-Browne, 199 So. 3d 565, 567 (Fla. 1st DCA 2016) ("If the order grants the [contempt] motion, it must contain findings that the contemnor had the present ability to pay support and willfully failed to do so, and it must contain a recital of the facts on which the findings are based.").
The order before us fails to include findings that the Former Husband had the present ability to pay alimony and that he willfully failed to comply with his alimony obligations. The order also fails to state any facts that would support such findings. The unsigned minutes do not constitute an order as required by rule 12.615(d). See Fla. R. App. P. 9.020(f) (defining "order" as "[a] decision, order, judgment, decree, or rule of a lower tribunal, excluding minutes and minute book entries"); see, e.g., Carroll v. State, 157 So. 3d 385, 385 (Fla. 2d DCA 2015) ("Even when the trial court has previously made a written finding of competency on a signed 'minutes' form, this still does not satisfy the requirement to enter an order as set forth by the rules of criminal procedure."). Thus, we reverse and remand for "the trial court to enter an order in compliance with rule 12.615(d)(1)." See Trisotto v. Trisotto, 966 So. 2d 986, 988 (Fla. 5th DCA 2007).
B. Attorney's Fees and Costs
Section 61.16(1) provides, in part:
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.
(Emphasis added.) The trial court must, therefore, consider need and ability to pay before it can award attorney's fees and costs in contempt proceedings incident to enforcing support orders. Allen v. Juul, 278 So. 3d 783, 784 (Fla. 2d DCA 2019) (citing Sumlar v. Sumlar, 827 So. 2d 1079, 1084 (Fla. 1st DCA 2002) ). "[S]uch findings may be made in the written final judgment or at the hearing." Id. at 785 (alteration in original) (quoting Frezza v. Frezza, 216 So. 3d 758, 760 (Fla. 2d DCA 2017) ).
The order recites no findings. Without a transcript or adequate statement under rule 9.200(b)(5), we cannot determine if the trial court made the required findings concerning the parties' relative financial positions. See Frezza, 216 So. 3d at 760 (declining, in the absence of a transcript, to conclude that the trial court erred in awarding the former husband attorney's fees without considering the parties' financial positions); see also Christensen v. Christensen, 291 So. 3d 1016, 1018 n.1 (Fla. 2d DCA 2020) ("[W]ithout a transcript, this court would be unable to determine if the trial court failed to make the required findings [pursuant to section 61.16 ] or if there was a basis beyond the obvious financial disparity between the parties for a denial of fees pursuant to the statute.").
Nevertheless, "[a]n award of attorney's fees without adequate findings justifying the amount of the award is reversible even where the appellant has provided an inadequate record of the trial court proceedings." Frezza, 216 So. 3d at 760 (quoting Esaw v. Esaw, 965 So. 2d 1261, 1265 (Fla. 2d DCA 2007) ). In determining the amount of fees to award, the trial court must "make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors as required by [ Rowe, 472 So. 2d at 1151 ]." Baratta v. Valley Oak Homeowners' Ass'n at the Vineyards, Inc., 891 So. 2d 1063, 1065 (Fla. 2d DCA 2004) ; see, e.g., Frezza, 216 So. 3d at 760 (concluding that the trial court complied with Rowe where it "made specific findings as to the reasonable number of hours of 'attorney time' expended and the reasonable hourly rate for the 'attorney time' ").
Because the trial court failed to make any express findings required by Rowe, the order is fundamentally erroneous on its face and we reverse the amount awarded to the Former Wife. See Baratta, 891 So. 2d at 1065 (reversing the fee award in the absence of a transcript because the judgment was "fundamentally erroneous on its face" where it failed to make the express findings required by Rowe ); Bayer v. Glob. Renaissance Arts, Inc., 869 So. 2d 1232 (Fla. 2d DCA 2004) (same).
C. Conclusion
The deficiencies discussed above require us to reverse and remand the contempt order and the attorney's fee award. On remand, the trial court shall make the required written findings under rule 12.615(d)(1), see Trisotto, 966 So. 2d at 988, and Rowe, see Baratta, 891 So. 2d at 1065.
Affirmed in part, reversed in part, and remanded.
KHOUZAM, C.J., and ROTHSTEIN-YOUAKIM, J., Concur.