Cleary v. Cleary, 2D16-4691

Former Husband (Robert Cleary) and Former Wife (Maria T. Cleary) divorced; this appeal follows post-remand proceedings stemming from this court's 2004 opinion reversing part of the original equitable distribution and retroactive alimony awards.
The parties did not pursue the remand for over a decade; in 2014–2015 they returned to circuit court seeking an accounting of payments and credits affected by the 2004 remand.
After evidentiary hearings (including accountant testimony and financial documents), the circuit court entered a final judgment on August 30, 2016, incorporating an October 5, 2015 omnibus order and money judgment.
The final judgment awarded the Former Husband $94,482.25 in attorney’s fees and costs borne by the Former Wife.
The circuit court found the Former Husband’s accountant credible and concluded the Former Wife’s post-December 1, 2014 fees were unreasonable and that her pursuit of claims after that date was without merit and caused fees to the Former Husband.
The final judgment, however, failed to specify the legal basis for awarding fees to the Former Husband (i.e., §61.16/Rosen or inherent authority), and also included findings that the Former Wife had been entitled to fee payments from the Former Husband (up to Dec. 1, 2014) and that the Former Husband had the ability to pay her fees.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court properly awarded attorney’s fees to Former Husband	Cleary argued fee award was warranted under Fla. Stat. §61.16(1) and Rosen based on the Former Wife’s unjustified litigation and ability to pay	Former Husband disclaimed inherent-authority sanctions and urged the award be viewed under §61.16 and Rosen; trial court found Wife’s post-Dec.1,2014 conduct unreasonable	Reversed as to the fee award: record and trial findings preclude treating award as §61.16/Rosen because trial found Wife was entitled to fees (to Dec.1,2014) and Husband had ability to pay; inherent-authority sanctions were improper because case was not an extreme one and lacked detailed bad-faith findings

Cleary v. Cleary, 872 So. 2d 299 (Fla. 2d DCA 2004) (prior appellate decision remanding for adjustment)
Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997) (standards for awarding attorney’s fees between spouses under equitable considerations)
Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002) (trial court’s inherent authority to impose sanctions limited and requires specified findings)
Bitterman v. Bitterman, 714 So. 2d 356 (Fla. 1998) (inherent-authority fee awards reserved for extreme cases)
Rogers v. Wiggins, 198 So. 3d 1119 (Fla. 2d DCA 2016) (§61.16/Rosen requires ability to pay; manner of litigation alone insufficient)
Hahamovitch v. Hahamovitch, 133 So. 3d 1020 (Fla. 4th DCA 2014) (Rosen cannot be used to award fees to the spouse with greater ability to pay)
Hallac v. Hallac, 88 So. 3d 253 (Fla. 4th DCA 2012) (inherent-authority sanctions are rarely applicable and reserved for extreme cases)
Zanone v. Clause, 848 So. 2d 1268 (Fla. 5th DCA 2003) (ability to pay is a requirement when assessing fee-shifting under Rosen)