Opinion
No. 1D21-2454
07-05-2023
Bradley M. WILLIAMS, Appellant, v. Jasmine E. WILLIAMS, Appellee.
Emilian Bucataru, Bucataru Law Firm PLLC, Tallahassee, for Appellant. Jessica Presley Davis, Cordell & Cordell, Jacksonville, for Appellee.
Emilian Bucataru, Bucataru Law Firm PLLC, Tallahassee, for Appellant.
Jessica Presley Davis, Cordell & Cordell, Jacksonville, for Appellee.
Tanenbaum, J.
This appeal involves review of a non-final order granting the wife, Jasmine Williams, temporary relief while the parties’ dissolution proceeding remains pending. See § 61.052(3), Fla. Stat. ("During any period of continuance, the court may make appropriate orders for the support and alimony of the parties; the parenting plan, support, maintenance, and education of the minor child of the marriage; attorney's fees; and the preservation of the property of the parties."). The husband, Bradley Williams, makes three arguments for error in the order. We address each in turn.
I
We begin by rejecting Bradley's last argument: that the trial court erroneously awarded Jasmine temporary alimony (thereby also rendering the temporary child support calculation erroneous). On the one hand, he relies on section 61.08(2), Florida Statutes, to assert that the trial court erred by failing to include in its order specific factual findings to support the temporary alimony award. Bradley is correct that section 61.08 requires such factual findings, but it does not apply in these preliminary proceedings—section 61.071, Florida Statutes, does. Cf. Ogle v. Ogle , 334 So. 3d 699, 705 (Fla. 1st DCA 2022) (contrasting temporary alimony and permanent alimony and citing cases). This latter provision does not require the findings that Bradley is looking for as a basis for prejudicial error.
On the other hand, Bradley alleges that the amount of temporary alimony the trial court awarded "was simply conjured up." This claim, however, overlooks the significant amount of discretion the trial court has when making these preliminary equitable determinations. See § 61.011, Fla. Stat. (stating the dissolution proceedings are in chancery); Haddon v. Haddon , 36 Fla. 413, 18 So. 779, 781 (1895) (noting that it was "well settled that the granting or withholding of such [temporary] allowances is within the discretion of the court to whom the application therefor is made, but this discretion is not an arbitrary one"); Duss v. Duss , 92 Fla. 1081, 111 So. 382, 384 (1926) (describing the discretion and control that the trial court has over temporary support orders prior to entry of a final decree); cf. Canakaris v. Canakaris , 382 So. 2d 1197, 1202 (Fla. 1980) (describing generally the trial court's "broad discretionary authority to do equity between the parties" in a final dissolution proceeding); Rosen v. Rosen , 696 So. 2d 697, 700 (Fla. 1997) ("The legislature has given trial judges wide leeway to work equity in chapter 61 proceedings.").
Temporary alimony (also known as "alimony pendente lite") furnishes a spouse—from whom the other spouse has withdrawn support—"with the means of living" while the rights of the spouse in need "are being adjudicated." Holly v. Holly , 81 Fla. 881, 89 So. 132, 133 (1921). "[T]wo things must concur, and must be made to appear, before a court is justified in making any allowance to the wife in divorce proceedings for temporary alimony:" 1) a "necessity" based on a "want of means, or of sufficient means, to maintain [himself or] herself during the litigation"; and 2) "pecuniary means" on the part of the other spouse "to supply that necessity." Haddon , 18 So. at 780. We will not second-guess a trial court's discretionary determination (read: substitute our judgment for the trial court's) regarding both the need for temporary alimony and the amount, provided there is some evidence in the record to support it. Cf. Canakaris , 382 So. 2d at 1202 (defining "judicial discretion" as the "power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court" (quotation and citation omitted)). Moreover, as we review the trial court's discretionary act in awarding temporary relief, we "must fully recognize the superior vantage point of the trial judge and should apply the ‘reasonableness’ test to determine whether the trial judge abused his discretion." Id. at 1203. "If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion." Id.
At the evidentiary hearing on Jasmine's motion for temporary relief, both spouses testified, providing the trial court what it needed to have a preliminary understanding of the parties’ respective financial circumstances. It is true that the trial court did not explain in its order how it determined $700 to be the appropriate amount of temporary alimony, but when it comes to temporary alimony under section 61.071, the lack of a written explanation does not, by itself, establish a basis for appellate relief. Meanwhile, in our review of the appendix submitted by Bradley, we do not readily find any illogic or unjustifiability behind the trial court's preliminary determination of a support amount, nor does the $700 amount appear to us to be the product of "whim or caprice." Cf. id. We also do not see where the trial court applied an incorrect legal rule. See id. at 1202 (requiring appellate courts to "recognize the distinction between an incorrect application of an existing rule of law and an abuse of discretion" and explaining that in the former context, "the action is erroneous as a matter of law" rather than "an abuse of discretion"). In turn, we affirm this aspect of the trial court's order.
II
We cannot say the same regarding two other aspects of the order that Bradley addresses in his appeal. One of these involves the trial court's directive regarding Bradley's receipt of Early Return of Dependent ("ERD") funds from the United States government in connection with his military service. Shortly after the parties married in 2016, Jasmine moved to Germany, where Bradley was stationed at the time as a member of the United States Air Force. While living in Germany, Jasmine became pregnant with the married couple's child. Once Jasmine told Bradley about this, Bradley had her return to Crawfordville, Florida, where she gave birth to their daughter approximately five months later. In connection with that move, the government provided Bradley $15,600 in ERD funds to assist in relocating Jasmine back to the United States. Bradley transferred $9,000 of that amount to Jasmine and held onto the remaining $6,600.
According to Department of Defense Directive 1315.18, ERD allows a service member's dependent(s) to be transported from the service member's overseas duty station to a designated place in the U.S., Puerto Rico, or any territory or possession of the U.S. prior to completion of the service member's current assignment. See DoD Dir. 1315.18 Enclosure 5(6).
In the temporary relief order, the trial court orders Bradley "to provide the remaining $6,600.00 Early Return of Dependent Funds to the Wife ... as that money was provided by the United States Military for the Wife's benefit." This directive was separate and apart from the $700 in monthly temporary alimony that we just discussed, and for this reason, it is problematic. Following the hearing, the trial court had the authority to award temporary "support and alimony," which it did with the monthly award of $700. The directive to transfer the ERD funds is something else: distribution of money that potentially is a marital asset. A different statute, section 61.075, governs equitable distributions.
That provision does authorize interim distributions, for good cause, "at any time after the date the dissolution of marriage is filed and served and before the final distribution of marital and nonmarital assets and marital and nonmarital liabilities." § 61.075(5), Fla. Stat. At the same time, the provision sets out various requirements and procedures for doing so, none of which the trial court complied with. See, e.g. , id. (3)(a)–(b) (requiring that, unless there is agreement, "any distribution of marital assets or marital liabilities shall be supported by factual findings," including a "[c]lear identification of nonmarital assets" and "marital assets"); id. (5) (requiring that an interim order "identify and value the marital and nonmarital assets and liabilities made the subject of the sworn motion, set apart those nonmarital assets and liabilities, and provide for a partial distribution of those marital assets and liabilities").
Because an interim equitable distribution is a different type of relief, with its own statutory authority, Jasmine needed to separately request that relief in her motion before the trial court would have the authority to grant it following the hearing. In this respect, then, Bradley is correct that Jasmine did not include in her motion for temporary relief a request for an interim equitable distribution (or even mention the ERD). At the hearing, the ERD came up in testimony but not in the context of a distribution. The trial court, then, could not order one. See Schanck v. Gayhart , 245 So. 3d 970, 972 (Fla. 1st DCA 2018) ("It is well-settled that where a particular form of relief is not requested by the parties and the matter is not tried by consent, the granting of such relief violates due process."); Martin v. Lee , 219 So. 3d 1024, 1025 (Fla. 1st DCA 2017) ("It is well settled that courts are not authorized to grant relief not requested in the pleadings"); Causey v. Causey , 36 So. 3d 893, 893 (Fla. 1st DCA 2010) (reversing relief granted by the trial court that was not requested by either party); cf. Cavalier v. Ignas , 290 So. 2d 20, 22 (Fla. 1974) (noting that due process of law "requires that notice be given and that petitioner be afforded an opportunity to be heard before entry of a final judgment"). We, then, vacate the directive pertaining to the $6,600 in ERD funds. On remand, of course, the trial court is free to consider an interim distribution, if appropriate, in accordance with section 61.075(5), provided Jasmine makes a proper request for that relief.
III
The other problematic aspect of the order concerns the trial court's award of $12,000 in temporary attorney fees pursuant to section 61.16, Florida Statutes. The trial court certainly has the authority to, "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." § 61.16, Fla. Stat. Like with the award of temporary alimony, the trial court has broad discretion in this regard. See Rosen , 696 So. 2d at 700. Ordinarily, we would defer to that discretion, but to do so, as we already noted, there must be some evidence in the record to support the trial court's exercise of discretion.
The trial court received at least some testimony and other evidence regarding the spouses’ financial resources. The parties’ respective financial resources indeed "are the primary factor to be considered," just like with a determination of temporary alimony. Id. ; see also Haddon , 18 So. at 780 (requiring a demonstration of one spouse's need and the other's ability to pay before awarding temporary "counsel fees"). The purpose of temporary counsel fees, however, naturally differs from that of temporary alimony: It is to ensure that a spouse is able "to maintain or defend [his or] her suit." Holly , 89 So. at 133 ; see also Finch v. Cribbs , 46 Fla. L. Weekly D1467, ––– So.3d ––––, 2021 WL 2547914 (Fla. 1st DCA Nov. 2, 2022) (on motion for clarification on remand of appellate fee motion filed under section 61.16 ; providing history and purpose of temporary fee provision).
To get at "need" in this context, then, the trial court must consider evidence beyond just the requesting spouse's financial status. The trial court must also determine how much in temporary attorney's fees is reasonable to ensure the spouse's fair access to competent counsel. Cf. Rosen , 696 So. 2d at 701 (noting that the lodestar amount "may be used as a starting point in determining a reasonable attorney's fee" but that the court also "may consider all the circumstances surrounding the suit in awarding fees under section 61.16"). Other factors to be considered, depending on the circumstances of the case, include "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." Id. at 700.
The trial court ordered Bradley to pay Jasmine $12,000 in attorney's fees within thirty days. That directive was based on the trial court's finding that Jasmine incurred $16,482.42 in fees already and that she expected to incur an additional $22,345.00 by the conclusion of the case. The trial court found that Jasmine did not have the financial means to pay those fees but that Bradley did. If this determination had been based on evidence presented to the trial court, we would not have a basis to overturn it unless the amount was wholly unreasonable. The trial court, however, did not receive any evidence regarding the amount of fees.
At the conclusion of the hearing on the motion for temporary support, the following exchange occurred:
THE COURT: Did you have any other witnesses or evidence to present?
MS. DAVIS: It was just me, Your Honor. It was my affidavit of attorney's fees. And, if Mr. Bucataru will stipulate, I filed them with the Court.
THE COURT: Okay. All right.... Mr. Bucataru, is there anything you wanted to put on?
MR. BUCATARU: Your Honor, I have, by the looks of things, about two to three hours of questioning of Ms. Davis.
THE COURT: Of Ms. Davis?
MR. BUCATARU: Yes, Your Honor.
THE COURT: Okay. I tell you what we're going to do. You guys see what—and there are issues you can narrow with respect to Ms. Davis, because we don't have two or three hours. Both of you are professionals. You can narrow the issue. And if I have to—if we have to come back—and I'm going to tell you right now, we may come back and address attorney's fees, but right now temporary support—you all should be able to narrow that issue, get me proposed orders. And, if you can't agree on the affidavit with respect to attorney's fees as the number and reasonableness, then we'll do that separately.
The trial court's order states that counsel stipulated to the admission into evidence of the fee affidavit prepared by Jasmine's counsel, but that stipulation does not appear in the records before us. On appeal, Bradley's counsel asserts there was no stipulation, and Jasmine's counsel does not disagree and has not submitted an appendix containing any stipulation filed with the trial court. That leaves just the affidavit of Jasmine's counsel, which was filed with the court but not admitted into evidence. The affidavit by itself, then, is not evidence on which the trial court could rely, and without any testimony given at the evidentiary hearing about the amount of fees, there is no evidentiary basis to support the trial court's discretionary determination as to how much to award Jasmine under section 61.16. This aspect of the order on review also is in error and must be vacated.
AFFIRMED in part and VACATED in part.
Lewis and Long, JJ., concur.