Opinion
Nos. 1D20-707 1D20-2337
07-27-2022
Aaron Matthew ERSKINE, Husband, Appellant, v. Lela Ann ERSKINE, Wife, Appellee.
Bradley G. Johnson of Bradley G. Johnson, P.A., Milton, for Appellant. Laura E. Keene of Beroset & Keene, Pensacola, for Appellee.
Bradley G. Johnson of Bradley G. Johnson, P.A., Milton, for Appellant.
Laura E. Keene of Beroset & Keene, Pensacola, for Appellee.
Tanenbaum, J.
In these consolidated appeals arising out of dissolution proceedings, the husband seeks review of two orders. In case number 20-707, the husband asks us to consider what he characterizes as a non-final order, one in which the trial court found him in willful contempt based on the wife's third motion for enforcement (the "contempt order"). The order directed that the husband produce a complete accounting of his liquid assets, including funds he pulled out of a retirement account that the court construed as being at least partially a marital asset. He supposedly put those funds toward paying off an earlier enforcement order for temporary support, which we later reversed. In the contempt order on appeal here, the trial court also granted the wife her attorney's fees that she incurred in connection with her third enforcement motion, but it put off determining the amount for a later date.
In case number 20-2337, the husband seeks review of a second order. This one came after the husband appealed the contempt order. In this second order (the "appellate fee order"), the trial court directed the husband to pay $5,000 in temporary attorney's fees to the wife's counsel for representation in the appeals, pursuant to section 61.16, Florida Statutes. To be clear, the award had nothing to do with the merits of this appeal or whether the wife was likely to prevail in this court. This is a marriage dissolution case, and the fee award was essentially suit money as a form of temporary alimony—the trial court made the award based on the wife's financial need and the husband's ability to pay.
We will explain our disposition below, but here is the abstract. The contempt order is not reviewable under the rule allowing for appeals of non-final orders, and it is not the type of order for which certiorari relief is available. That appeal, then, will be dismissed. As to the appellate fee order, we reject the husband's argument that the trial court did not have sufficient authority, under section 61.16 alone, to award temporary fees to the wife so that she could participate in this appeal through counsel. Because the husband did not attempt to submit evidence that showed a material change in his financial condition since entry of the earlier temporary support order, and because the trial court was free to consider all of the circumstances of the case—including the husband's prior conduct and non-credible testimony—we cannot say that the court abused its discretion when it awarded the wife temporary attorney's fees to cover these appeals. We, then, will affirm the appellate fee order.
I
First, we address the husband's challenge to the contempt order. In 2018, the trial court ordered the husband to pay $80,000 toward the wife's temporary support. The husband appealed that support order, and this court reversed and remanded. See Erskine v. Erskine , 262 So. 3d 223 (Fla. 1st DCA 2018). While the support order was on appeal, though, the trial court granted the wife's second motion for enforcement of that support order (the court denied the husband's request for a stay) and directed the husband to pay the $80,000 in temporary support or be subject to contempt. That same day, the husband liquidated a retirement account to pay the amount ordered in support.
In 2019, after the mandate from this court had issued and the support order had been vacated, the wife filed a third enforcement motion. The wife pointed out several deficiencies that she wanted the court to rectify—primarily his failure to make a variety of support payments previously ordered by the court—and she asked that the trial court find the husband in contempt based on the liquidation of the retirement account. According to the wife, the account was a disputed marital asset and subject to the standing pretrial order that she claimed prevented such action without her consent or an additional order from the court.
After a hearing, the trial court agreed with the wife that the husband's compliance with his support obligations was deficient in several ways. One of those ways had to do with the retirement account. The court determined that the retirement account was either wholly or partially a marital asset and that the husband willfully dissipated the funds from that account. The trial court in turn found the husband's action to be contemptuous and ordered that within sixty days he provide a complete accounting of both the liquid assets that the husband had listed on his financial affidavit and the funds from the liquidated retirement account. The trial court also awarded the wife the attorney's fees she incurred to file and pursue the third motion for enforcement, but it reserved jurisdiction to consider the amount and method of payment.
The husband's notice of appeal characterizes this enforcement order as non-final. His initial brief addresses only the part of the order that dealt with the retirement account and asserts that the trial court abused its discretion when it found him in contempt and ordered the accounting. For this court to have jurisdiction over such an appeal, the order on review must be of a type listed in Florida Rule of Appellate Procedure 9.130. Cf. Art. V, § 4(b)(1), Fla. Const. (giving district courts of appeal jurisdiction over "interlocutory orders in such cases to the extent provided by rules adopted by the supreme court"). Even though this is a family law matter, the order does not appear to determine a "right to immediate monetary relief"; a right or obligation "regarding child custody or time-sharing"; or the wholesale invalidity of "a marital agreement." Fla. R. App. P. 9.130(a)(3)(C)(iii). In a show-cause order, we asked the husband about this possible jurisdictional defect. He seemingly concedes that there is no appellate jurisdiction by instead contending, without elaboration, that he will suffer irreparable harm from being found to be in willful contempt for having dissipated the retirement account funds and from having to account for the liquid assets and funds. By the husband's response, we consider his original request for direct appellate review to be one for certiorari review. See Fla. R. App. P. 9.040(c) (requiring that cause "be treated as if the proper remedy had been sought" when "a party seeks an improper remedy").
The husband asserts, in part, that the trial court abused its discretion when it awarded the wife her attorney fees incurred in connection with her motion for enforcement. The order did not set an amount of fees, and the trial court in fact reserved jurisdiction to make that determination later. We lack the jurisdiction to review that award. Cf. Util. Lines Const. v. Crosby , 35 So. 3d 53, 54 (Fla. 1st DCA 2010) (dismissing for lack of jurisdiction an appeal of an order determining entitlement to a reasonable attorney's fee but reserving jurisdiction to determine fee amount, "because it does not end the judicial labor on the attorney's fee issue").
Even so, we still do not have jurisdiction in case number 20-707. Certiorari is an extraordinary, common-law writ. It does "not [ ] take the place of a writ of error or an appeal"; it instead permits an appellate court to "determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law, in cases where no direct appellate proceedings are provided by law." Seaboard Air Line Ry. v. Ray , 52 Fla. 634, 42 So. 714, 715 (1906) ; see also Robinson v. State , 132 So. 2d 3, 5 (Fla. 1961) ("In situations in which review of a judgment or decree of a lower court is not otherwise provided for, the District Courts of Appeal are endowed with powers of review limited to a determination of whether the judgment constitutes a deviation from the essential requirements of the law."). In the light of this limited scope of certiorari relief, the husband must make a threshold, jurisdictional showing that the claimed harm stemming from the order could not be remedied later on direct review either of an appealable non-final order or of a final order. See Citizens Prop. Ins. Corp. v. San Perdido Ass'n, Inc. , 104 So. 3d 344, 351 (Fla. 2012) (explaining that in considering a certiorari petition, "the appellate court must focus on the threshold jurisdictional question: whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm"); see also Jaye v. Royal Saxon, Inc. , 720 So. 2d 214, 215 (Fla. 1998) (approving dismissal of certiorari petition for want of jurisdiction because the denial of a jury trial demand does not cause "an irreparable harm that cannot be remedied on direct appeal").
This, the husband fails to do. For the most part, all the trial court did was make factual determinations about the husband's dissipation of funds and contemptuous nature of that conduct. The trial court at the same time refrained from imposing the ordinary sanctions for civil contempt. See Bowen v. Bowen , 471 So. 2d 1274, 1277 (Fla. 1985) (explaining that "the purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court," so incarceration "must be used only when the contemnor has the ability to comply"); Fla. Fam. L. R. P. 12.615(d), (e) (setting out the procedure for incarceration and purge to obtain compliance); cf. Senterfitt v. Oaks , 775 So. 2d 431, 431 (Fla. 1st DCA 2001) (granting certiorari petition and quashing erroneous contempt order that directed former husband incarcerated until he paid child support arrearage due to a lack of evidence as to his ability to pay purge amount); Thurman v. Thurman , 637 So. 2d 64, 65 (Fla. 1st DCA 1994) (affirming a contempt order that directed former husband incarcerated due to nonpayment of child support and alimony but amending the order to contain purge provision).
Instead, the trial court ordered that the husband account for his liquid assets and for the funds that were in the retirement account. The "sanction" essentially required more disclosure in place of imposition of a monetary sanction or reduction of liberty. In this sense, the trial court did not order much more than what already is required in the way of financial disclosures. See Fla. Fam. L. R. P. 12.285, 12.287. We are hard-pressed to see how the additional disclosure obligation imposed by the trial court—even if it were erroneous—causes any harm to the husband at all, let alone a harm that could not be remedied through a direct appeal. No matter how we characterize the relief that the husband seeks, then, we must dismiss the appeal in case number 20-707 for lack of jurisdiction.
II
As we mentioned at the beginning, the husband also seeks review of the trial court's order granting the wife's request for temporary attorney's fees to cover her defense of his appeals. The wife made the request in the trial court pursuant to section 61.16, Florida Statutes. The husband advances two arguments for why the fee order should be reversed. First, relying on Rados v. Rados , 791 So. 2d 1130 (Fla. 2d DCA 2001), the husband contends that the trial court did not have authority to award the appellate fees because there was no authorizing order from this court before the trial court made the award. Second, the husband asserts that the trial court abused its discretion in granting the motion without first taking evidence of the wife's need for the appellate fees or the husband's ability to pay. We take each of these arguments in turn, but we ultimately reject them both and affirm the fee award.
A
The husband relies on Rados because the Second District's opinion contains the following general statement:
A trial court cannot award appellate attorney's fees unless the appellate court has authorized such an award. Thus, a litigant who wants to pursue a claim for appellate attorney's fees is required to file a motion in the appellate court under rule 9.400(b), stating the legal basis for the claim.
Rados , 791 So. 2d at 1131–32 (internal citation and note omitted). We will come back to this proposition in a moment. Before doing so, we look at the current text of section 61.16, Florida Statutes, which governs here.
1
Section 61.16 expressly gives the trial court the authority to direct one spouse to pay another's litigation fees and costs, including fees and costs incurred in connection with an appeal stemming from the dissolution proceedings. The provision states in pertinent part as follows:
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.... 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. (2019) (emphasis supplied).
Provisions in the same part of chapter 61 make similar use of "the court" to refer to the trial court, which has the authority to award alimony and other maintenance. See §§ 61.08, 61.09, Fla. Stat.
The Legislature added the highlighted language to the statute in 1994. See ch. 94-169, § 1, at 1039, Laws of Fla. Following suit, the appellate rule addressing trial court jurisdiction pending review specifically accommodates this substantive directive by providing that in family law matters, the trial court "shall retain jurisdiction to enter and enforce orders awarding ... temporary attorneys’ fees and costs reasonably necessary to prosecute or defend an appeal, or other awards necessary to protect the welfare and rights of any party pending appeal." Fla. R. App. P. 9.600(c)(1). Such orders then are subject to review via motion filed in the appellate case. See Fla. R. App. P. 9.600(c)(3). These provisions in the statute and the rule seem clear enough regarding the trial court's authority to award the wife temporary appellate fees, which brings us back to Rados and the statement, quoted above, on which the husband relies. 2
We initially should note that the context within which the statement was made makes it inapplicable to this case. The Second District had before it a former husband's appeal of a final dissolution judgment, which the appellate court affirmed. It then remanded the former wife's motion for appellate fees, filed pursuant to rule 9.400, and "authorized" the trial court "to award [the former wife] all or a portion of her reasonable appellate attorney's fees" if the criteria set out in section 61.16 were met. Rados , 791 So. 2d at 1131. The former wife's filing her motion pursuant to rule 9.400 meant she sought final appellate fees to be determined at the conclusion of the appellate proceeding.
By contrast, the wife in this case sought temporary fees to be awarded while the appeal was pending. Indeed, the Second District in a more recent case implicitly distinguishes Rados on this basis. See Palmateer v. Palmateer , 313 So. 3d 200, 204 (Fla. 2d DCA 2021). It read section 61.16(1) and rule 9.600(c) as
address[ing] those instances where the analysis of need and ability to pay reveal a spouse with a need so great that requiring him or her to wait to be reimbursed for appellate attorney fees at the end of the appellate process would foreclose his or her ability to obtain competent counsel at the beginning of the appeal or to retain that counsel throughout the appeal.
Palmateer , 313 So. 3d at 204. Unlike Palmateer , Rados does not involve a trial court's grant of a motion for temporary fees to be awarded while the appeal was ongoing and without prior authorization by an appellate court. Rados , then, carries no water for the husband in this case.
There is one other problem with the quoted statement from Rados . Nearly two decades earlier, before the text of section 61.16(1) highlighted above existed, this court adopted the practice of provisionally granting, at the conclusion of the appellate process, an attorney's fee motion filed in a marriage dissolution appeal. See Dresser v. Dresser , 350 So. 2d 1152, 1154 (Fla. 1st DCA 1977). According to the Dresser Court, if the trial court already has awarded fees to the moving party "and it appears that a further award on account of appellate services is appropriate," the court "shall provisionally grant the motion for allowance of fee money and remand to the trial court both the question of the amount of a reasonable fee for the appellate services" and "what part of that amount, if any, should be paid by the other party because of a present disparity in ability to pay." Id.
Dresser does not quote or cite section 61.16. Instead, it relies on an "unstated rationale" derived from a 1975 decision of the Fourth District Court of Appeal: "the determination of whether to award fee money for appellate services in dissolution litigation is a prerogative of the appellate court." Id. at 1153 (citing Ludemann v. Ludemann , 317 So. 2d 860, 861 (Fla. 4th DCA 1975) ). Ludemann also does not quote or cite section 61.16. It simply announces the same proposition: whether to award appellate fees in domestic litigation is the appellate court's prerogative, "in the exercise of its sound discretion." 317 So. 2d at 861–62. The Third District Court of Appeal followed this rationale—without quotation or citation to section 61.16—and went so far as to reverse a trial court's award of appellate fees in a domestic relations case "because [it] lacked jurisdiction to award a fee for services rendered in this court." Winner v. Winner , 376 So. 2d 924, 924 (Fla. 3d DCA 1979). Without any consideration or treatment of the text in section 61.16, the Fifth District Court of Appeal adopted in toto the analysis set out in Ludemann . See Thornton v. Thornton , 433 So. 2d 682, 684–85 (Fla. 5th DCA 1983).
It should be readily apparent from this background that the statement in Rados stems from a long-standing judicial principle; it does not have a constitutional dimension. As we are about to see, this means that the Legislature is free to alter the balance of authority to consider requests for fees between the appellate and trial courts.
3
We start back with Rados , which leaves to the margin a reference to what it characterizes as a "small exception to this rule in probate proceedings." 791 So. 2d at 1131 n.1. As it turns out, the exception is not small at all. The footnote cites to the Second District's case in Bissmeyer , where the court declined to consider a motion for fees "for services rendered in this appeal pursuant to section 733.106(3), Florida Statutes (1989)," explaining that "[s]uch a motion is not cognizable by this court and rests within the exclusive province of the circuit court." Bissmeyer v. Se. Bank, N.A. , 596 So. 2d 678, 679 (Fla. 2d DCA 1991).
The referenced provision at the time stated as follows:
733.106 Costs and attorney fees. —
(1) In all probate proceedings costs may be awarded as in chancery actions.
(2) A person nominated as personal representative of the last known will, or any proponent of the will if the person so nominated does not act within a reasonable time, if in good faith justified in offering the will in due form for probate, shall receive his costs and attorney fees out of the estate even though he is unsuccessful .
(3) Any attorney who has rendered services to an estate may apply for an order awarding attorney fees , and after informal notice to the personal representative and all persons bearing the impact of the payment the court shall enter its order on the petition.
(4) When costs and attorney fees are to be paid out of the estate, the court may, in its discretion, direct from what part of the estate they shall be paid.
§ 733.106, Fla. Stat. (1989) (emphasis supplied). The highlighted language demonstrates that the statute is not a prevailing party, fee-shifting statute; it is an equitable fee provision. This distinction indeed matters.
Bissmeyer relies on Udell , which in turn relies on the supreme court's decision in Garvey v. Garvey , 219 So. 2d 685, 686 (Fla. 1969). Under that fee rule in place at the time, according to the supreme court in Garvey , appellate courts could consider appellate fee motions when those fees are allowed by substantive law. At the same time, the court rejected both the proposition that the fee rule could "supersede the statute governing award of fees for services to an estate" and the proposition that "such an award for services in an appeal [were] contingent on motion in the appellate court." Garvey , 219 So. 2d at 686. "The fees ‘allowable by law’ under the Rule are those properly allowable by an appellate court, and we find no expressed or implied intent that the probate court be divested of its authority under the Constitution and statutes applicable here." Id. The supreme court concluded with the distinction between an equitable fee provision that did not condition an award on ultimately prevailing, on the one hand; and a prevailing-party fee provision, on the other: "The claim, in the present case, was for services to the estate in defending an appeal by a party seeking revocation of probate. With the qualification stated in the opinion below, preserving the right of appellate courts to adjudicate fees allowable against adverse parties under the Rule, we find the decision should be sustained." Id. (emphasis supplied).
In re Est. of Udell , 501 So. 2d 1286, 1288–89 (Fla. 4th DCA 1986) (also determining that fee motion under section 733.106 was not "cognizable" by the appellate court, because "[w]hether either claimant or both claimants are entitled to recover their attorney's fees for services rendered in these appellate proceedings is solely the province of the lower tribunal in the exercise of its probate jurisdiction").
In an earlier case, the supreme court determined that under the terms of the 1933 Probate Act, an executor was entitled to "necessary and reasonable costs and attorneys’ fees incidental to the probation or attempted probation [of a will], to be paid out of the estate under an order of the court." Watts v. Newport , 151 Fla. 209, 9 So. 2d 417, 420 (1942). "The success or failure of the effort [was] inconsequential." Id. To be sure, "[s]uch discretionary orders may on appeal be affirmed or reversed, according to the facts of each controversy." Id. The supreme court nonetheless explained that its order denying an application for fees, "without prejudice to the parties to apply to the probate court of Hillsborough County for such an order as was sought in this court," was based on statute, in which "[m]anifestly, it was the intention of the Legislature to clothe probate courts having jurisdiction of the probation of wills with discretionary powers to award or disallow costs and attorneys’ fees in such matters." Id. at 418, 420 (emphasis supplied). This is so because a fee rule like 9.400, which could only be procedural, cannot supersede the dictate of a fee statute. Cf. Garvey , 219 So. 2d at 686. As this court once noted, this rule may be the procedural "vehicle for requesting appellate fees, but [it] does not provide independent authority for granting attorney's fees." Lewis v. Lewis , 689 So. 2d 1271, 1273 (Fla. 1st DCA 1997).
Like the probate statute addressed in Watts and Garvey , section 61.16 is not a prevailing party statute. The supreme court has recognized as much. Indeed, "proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law." Rosen v. Rosen , 696 So. 2d 697, 700 (Fla. 1997) ; see § 61.011, Fla. Stat. ("Proceedings under this chapter are in chancery."). The core purpose of section 61.16 differs entirely from that of a prevailing party statute. Victory in litigation is not the test. The supreme court explained as follows:
[S]ection 61.16, Florida Statutes (1987), concerning attorney's fees in domestic relations cases, provides that "[t]he 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." A party's financial resources can substantially restrict the amount of attorney's fees awarded. Our case law implementing this statute requires a judge to consider the needs of the party seeking a fee and the financial resources of the parties to assure that both parties receive adequate representation. 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.
Standard Guar. Ins. Co. v. Quanstrom , 555 So. 2d 828, 835 (Fla. 1990) (emphasis supplied).
The supreme court later explained further the uniquely equitable—rather than simply fee-shifting—nature of section 61.16. It stated, in pertinent part:
[S]ection 61.16 should be liberally—not restrictively—construed to allow consideration of any factor necessary to provide justice and ensure equity between the parties. Section 61.16 constitutes a broad grant of discretion, the operative phrase being "from time to time." The provision simply says that a trial court may from time to time, i.e., depending on the circumstances surrounding each particular case, award a reasonable attorney's fee after considering the financial resources of both parties. Under this scheme, the financial resources of the parties are the primary factor to be considered. However, other relevant circumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation. Had the legislature intended to limit consideration to the financial resources of the parties, the legislature easily could have said so.
Rosen , 696 So. 2d at 700 (emphasis supplied). The supreme court concluded: "Consistent with our opinion in Quanstrom, we find that section 61.16 governs the standard to be applied in determining an award of attorney's fees in dissolution of marriage, support, and child custody cases." Id. at 701.
In the light of this historical overview, we have no doubt that the Legislature may bestow on the trial courts the authority to award appellate fees. That is precisely what the Legislature did with its 1994 amendment to section 61.16. We agree with the Second District's statement in Palmateer that " section 61.16(1) is jurisdictional and conveys certain authority on the circuit court, and nowhere does its language limit that jurisdiction by requiring any subsequent action in the appellate court." Palmateer , 313 So. 3d at 204. We also agree that rule 9.600(c) "limits that authority only by subjecting the trial court's order to review upon a motion filed in the appeal [from an underlying dissolution order] within thirty days." Id. The added statutory provision gives the trial court the necessary, independent authority to award temporary appellate attorney's fees to a spouse in need in a dissolution case while an order arising out of the case is on appeal. 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. We reject the husband's challenge to the fee order in this respect.
B
Now that we have dealt with Rados and clarified the authority of a trial court to grant temporary appellate fees, we still need to address the husband's argument that the trial court abused its discretion in awarding those fees to the wife. He contends that the trial court failed first to take additional evidence regarding the husband's present ability to pay.
Within days of the husband filing his appeal from the contempt order, the wife filed her motion for appellate fees to cover counsel's representation of her in this case. In support, the wife submitted her financial affidavit, and she asserted that she did not have the financial means to pay for that representation. She also relied on an order rendered by the trial court three months earlier, which granted the wife's request for temporary attorney's fees to pay for counsel in the proceedings there. In that earlier order, the trial court concluded, based on the husband's live testimony, that he "is inconsistent," "unable to give definite answers about his own finances," that he "is not up front about his finances," that the husband "has failed to disclose all of his income," and that his most recent financial affidavit underreported his monthly income by thousands of dollars. The trial court also determined—"based upon the best available evidence"—that the husband's monthly net income (subtracting for payment of temporary alimony) was $3,792. The court determined that the wife was credible, and it relied on her financial affidavit to find that her monthly net income, including the temporary alimony from the husband, was $6,000. The trial court concluded in the earlier order that the wife had a need for assistance with her attorney's fees and that the husband had the present ability to pay for that assistance. In turn, the trial court awarded the wife a $10,000 temporary attorney's fee for representation in the trial court, and $2,500 was payable per month for four consecutive months, the last month being March 2020. The husband does not appear to have challenged that earlier order.
In the order granting temporary attorney's fees for the appeal (the order now on review), the trial court noted its familiarity with the case, and it stated it was relying on its previous finding that the husband is not credible and that he had made any accurate determination of his income difficult. The trial court relied on its prior factual finding regarding the husband's liquid assets and noted that no evidence had been presented that indicated a substantial change in his reported income. Concluding, then, that the wife had a need for temporary assistance with her appellate attorney's fees and that the husband had the ability to pay, the trial court ordered the husband to pay $5,000 to the wife's appellate counsel as a reasonable fee.
The trial court orally pronounced this decision at a hearing (held roughly six months after entry of the earlier temporary support and fee order, and three months after the wife filed her motion for appellate fees). At the hearing, the husband's counsel sought to clarify that the trial court was "making a determination that [its prior finding about the husband's income] is res judicata as to his ability to pay." The trial court responded as follows:
THE COURT: Absolutely, because – and this is the reason why I want it [ ]very clear because I don't know what's going to happen with this particular order; but, frankly, I believe I made statements in the past that [the husband's] testimony as to his income has not been credible, and I have made determinations on that. Now, y'all are asking me to say, Well, he doesn't have the income. I've already made a determination previously that he's just incredible as to his testimony, and that's what I have to rely on. That's what we're going with at this point.... I haven't heard that there was a substantial change. What I have heard is we believe his income is a lot more and the Court previously found that his testimony is not credible and she still has a need. So that's going to be the order of the Court.
The husband does not appear to have submitted an amended financial affidavit, and his counsel did not attempt to call the husband to testify at the hearing or to offer any evidence to indicate a change in net income since the trial court's earlier determination in connection with the wife's temporary support and fee motion. Instead, the husband's counsel stated that he thought "the evidence has been poorly presented thus far, and, hopefully, it will be much better presented at a full hearing on the issue." Counsel did not contest the court's prior reliance on the husband's documentation showing his annual income as $106,000, but he attempted to explain that the "evidence has not been able to – or adequately presented, I guess, or presented in a way that was understandable to the Court as far as the expenses that go along with that business and what the debts are there; and, of course, the Court is able to consider all of that at a final hearing."
The husband's argument here is that the trial court abused its discretion because it did not look to the parties’ current relative financial positions when determining need and ability to pay. The husband contends that the trial court ignored what he characterizes now as his counsel's "proffer" that the parties’ financial circumstances had changed because of the court's prior award of alimony and child support, and he asserts that the court "declined to take testimony or evidence." This claim of error fails.
A proffer is no way to put facts into dispute at an evidentiary hearing. The trial court previously had entered a temporary support and attorney's fee order based on its factual determinations as to the husband's and wife's respective incomes and expenses. The husband does not appear to have disputed the order. The husband then had a continuing obligation to supplement his financial information "whenever a material change in [his] financial status occurs." Fla. Fam. L. R. P. 12.285(f). From the husband's failure to supplement—and in the absence of any evidence to the contrary—the trial court reasonably and fairly could have inferred the husband's financial wherewithal to pay the wife's present appellate fee need from his previous ability to pay the obligations set out in the earlier temporary support and fee order. Cf. § 61.14(5)(a), Fla. Stat. (establishing, in a contempt hearing, a rebuttable evidentiary presumption as to ability to pay based on an original alimony or support order). In other words, there was no evidentiary indication that anything about the husband's finances had changed since the prior orders.
The husband cannot now claim that the court abused its discretion by relying on its prior determinations when the husband did not put on testimony or other evidence of a material change that he asserts the trial court should have considered. See Finney v. State , 660 So. 2d 674, 684 (Fla. 1995) (holding that claimed error over trial court's refusal to permit cross-examination of victim not preserved where counsel failed to proffer testimony to be elicited and substance of testimony not apparent in the record); see also Lucas v. State , 568 So. 2d 18, 22 (Fla. 1990) (requiring proffer of evidence to preserve claim of error in its preclusion). The husband did not attempt to submit an updated financial affidavit or other documentation that showed that his net income had changed since the earlier temporary support and fee order. Instead, the husband's counsel effectively left the evidence in the record unrebutted by his mere criticism that the evidence before the trial court had simply "been poorly presented thus far," or not "adequately presented," or not "presented in a way that was understandable to the Court," all the while deferring to a final hearing for consideration of "all of that." This approach operates essentially as a forfeiture of the husband's argument that the trial court abused its discretion.
At all events, we conclude on this record that the trial court acted appropriately. As we noted above, chapter 61 proceedings are in equity. See § 61.011, Fla. Stat. ("Proceedings under this chapter are in chancery."). They in turn are "governed by basic rules of fairness as opposed to the strict rule of law." Rosen , 696 So. 2d at 700. The trial court has "wide leeway to work equity" in these proceedings, and it may consider "any factor necessary to provide justice and ensure equity between the parties." Id. While the trial court must primarily consider the parties’ financial resources, it also "may consider all the circumstances surrounding the suit in awarding fees under section 61.16." Id. at 701. The record, which includes the husband's testimony given at a prior hearing, supports the trial court's assessment of credibility and of the difficulty it had determining what the husband's actual income and expenses were. The court did not abuse its discretion when it took into account these circumstances and its prior determination about the husband's ability to pay, especially in the absence of any evidence to the contrary submitted by the husband. See Canakaris v. Canakaris , 382 So. 2d 1197, 1202-03 (Fla. 1980) (defining judicial discretion in terms of the "personal judgment of the court" and "is abused only where no reasonable [person] would take the view adopted by the trial court" (citations omitted)). The trial court's award of $5,000 for the wife's appellate fees was particularly reasonable in the light of the court's unchallenged conclusion in its previous order that the husband had the ability to pay $2,500 per month for four months for the wife's trial counsel fees. We find no error with the fee award on review in case number 20-2337.
* * *
The appeal in case number 20-707 is DISMISSED .
The order on review in case number 20-2337, awarding the wife temporary appellate attorney's fees, is AFFIRMED .
B.L. Thomas and Winokur, JJ., concur.