Opinion
Case No. 5D20-1188
08-20-2021
Cheri Lynne MELCHIONE, Appellant, v. Timothy TEMPLE, Appellee.
Cheri Lynne Melchione, Chapel Hill, North Carolina, pro se. Hal Roen, of Hal Roen, P.A., Maitland, for Appellee.
Cheri Lynne Melchione, Chapel Hill, North Carolina, pro se.
Hal Roen, of Hal Roen, P.A., Maitland, for Appellee.
ON MOTION FOR REVIEW
LAMBERT, C.J.
Appellant, Cheri Lynne Melchione ("Mother"), has moved under Florida Rule of Appellate Procedure 9.400(c) for review of the trial court's order denying her motion for appellate attorney's fees filed pursuant to section 742.045, Florida Statutes (2020). Our court had conditionally granted Mother's motion, dependent upon the trial court finding Mother's need for payment of her appellate attorney's fees and Appellee's, Timothy Temple ("Father"), ability to pay the attorney's fees. We remanded the case to the trial court to hold an evidentiary hearing to make these determinations after considering the financial resources of both parties, which it did. See McNulty , 233 So. 3d at 1279–80 (granting the mother's motion for appellate attorney's fees in a paternity proceeding conditioned upon a showing of her need and the father's ability to pay and remanding for trial court to make these determinations).
Section 742.045 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, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings." § 742.045, Fla. Stat. (2020). In McNulty v. Bowser , 233 So. 3d 1277, 1279–80 (Fla. 5th DCA 2018), we held that this statute applied to attorney's fees incurred on appeal.
Preliminarily, we note that in the order now before us, the trial court found that a reasonable attorney's fee for the services rendered by Mother's counsel on appeal was $8,300. The court made appropriate findings of fact as to the reasonableness of the number of hours expended and the hourly rate for counsel's services. See Kaiser v. Harrison , 985 So. 2d 1226, 1229 (Fla. 5th DCA 2008) (holding that the trial court is required to make findings as to number of hours reasonably expended and the hourly rate in order to substantiate the reasonableness of attorney's fee award in paternity proceedings). This amount has not been challenged or contested by either party.
As to the parties' respective financial conditions, the trial court found that, from the only evidence before it, Father's net income is slightly over $28,200 per month. It found Mother's "income" to be the $4,000 that she receives each month in child support from Father for the parties' one minor child. The court nevertheless denied Mother's motion, specifically finding that she "d[id] not have the need for appellate attorney's fees and is capable of paying them without [Father's] contribution."
The court explained in its order that while Mother had been unemployed "for [a] substantial time," there was no evidence that Mother suffered from any physical or mental disability that prevented her from obtaining employment. The court then "logically concluded," apparently based on Mother's lack of income through gainful employment but her nonetheless having expenses or bills to meet, that Mother has received financial assistance from her parents. It also found "particularly relevant" that in December 2020, "Mother took $10,000 and bought property in North Carolina" when "she could have paid her [appellate] attorney's fees which are less than the amount paid for the property."
Mother volunteered at "several non-profit organizations" for which she was not compensated.
For the following reasons, we conclude that the trial court erred in denying Mother's motion for appellate attorney's fees. First, section 742.045 directs trial courts to consider the financial resources of the parties when determining whether to award attorney's fees, not the financial resources of the family or friends of a party. See also Rogers v. Rogers , 824 So. 2d 902, 903 (Fla. 3d DCA 2002) ("When determining a party's ability to pay and a party's need for attorney's fees and costs, the general rule is that the trial court may only consider the ‘financial resources of the parties and not the financial assistance of family or friends.’ " (quoting Bromante v. Bromante , 577 So. 2d 662, 663 (Fla. 1st DCA 1991) )). Father did not sufficiently show below, nor does he argue here, why this general rule should not apply.
More particularly, the $10,000 that Mother received from her parents that the trial court found was particularly relevant in denying the motion for appellate attorney's fees should not, as just discussed, have been a factor. Had Mother, in fact, done as suggested by the trial court and paid her appellate attorney's fees in full from the $10,000 that she received from her parents, this would not have summarily precluded her entitlement to an award of attorney's fees where, as here, Father is in a vastly superior financial position to pay these attorney's fees.
According to other factual findings made by the trial court in its order, Mother explained that the $10,000 was loaned to her by her parents to purchase the North Carolina property.
Alternatively, if the $10,000 in question had been generated from Mother's own efforts, and not related to the financial generosity of her parents, Mother's entitlement under the facts of the case to having her appellate attorney's fees paid by Father would not have been vitiated simply because she could have satisfied, in full, her attorney's fee obligation by the exhaustion of her own funds. Simply stated, it would not have been necessary for Mother to have been completely unable to pay her appellate attorney's fees to be entitled to payment of these fees. See Ariko v. Ariko , 475 So. 2d 1352, 1353 (Fla. 5th DCA 1985) (recognizing that "[w]here one spouse has a superior financial ability to secure counsel, it is not necessary for the other spouse to be completely unable to pay attorney's fees in order to be entitled to an award of such fees" (citing Canakaris v. Canakaris , 382 So. 2d 1197, 1205 (Fla. 1980) )).
Although Ariko dealt with attorney's fees awardable under section 61.16, Florida Statutes, "[s]ection 742.045, Florida Statutes, ... provides for attorney's fees on the same basis as the provision for attorney's fees in dissolution of marriage cases, section 61.16(1), Fla. Stat." C.F. v. S.B. , 313 So. 3d 873, 875 (Fla. 2d DCA 2021) (citing Nishman v. Stein , 292 So. 3d 1277, 1281 (Fla. 2d DCA 2020) ).
Next, to the extent that the trial court's finding that Mother's failure to demonstrate a need for appellate attorney's fees was related to the court imputing some level of income to her due to her voluntary unemployment, this was error because the court made no findings as to either the amount or the source of this imputed income. See Zubkin v. Zubkin , 823 So. 2d 870, 871 (Fla. 5th DCA 2002) (recognizing that a trial court may only impute income to a party who is voluntarily unemployed but that the imputation must be supported by specific findings of fact indicating the amount and the source of the imputed income).
Lastly, we recognize that, beyond the primary determinations to be made by a trial court when awarding or assessing attorney's fees under section 742.045 of one party's need and the other party's ability to pay, a court may consider secondary factors such as the length and scope of the litigation and the parties' behavior during the litigation. See Zanone v. Clause , 848 So. 2d 1268, 1271 (Fla. 5th DCA 2003). However, other than Mother's behavior in purchasing property in North Carolina, which we have previously addressed, the court's order makes no findings as to these secondary factors to justify or explain the denial of the motion.
Concluding that the trial court abused its discretion in denying Mother's motion for appellate attorney's fees, we reverse the order under review. We remand with specific directions to the trial court to award to Mother the $8,300 in appellate attorney's fees that it has determined to be reasonable and to order Father to pay these attorney's fees. In its discretion, and barring evidence compelling a different procedure, the trial court may order Father to make this payment to Mother's former attorney.
See Campbell v. Campbell , 46 So. 3d 1221, 1222 (Fla. 4th DCA 2010) (holding that as a general rule, "[a] trial judge's award of attorney's fees and costs is reviewed under an abuse of discretion standard of review").
REVERSED and REMANDED, with directions.
EVANDER and TRAVER, JJ., concur.