Giovanini v. Giovanini, 2012 Fla. App. LEXIS 7541

Former Husband appeals denial of Rule 1.540(b) relief and trial court's order awarding Former Wife temporary appellate attorney's fees under 61.16(1).
Former Wife claimed Husband could pay and that twenty hours at $250/hour were needed to defend the appeal.
Trial court ordered Husband to pay $5,000 after considering memoranda, without a hearing as anticipated by its prior order.
Husband petitioned for review under Florida Rule of Appellate Procedure 9.600(e)(3), arguing lack of hearing on the fee award.
Standard of review is abuse of discretion; need-and-ability-to-pay and specific fee-finding requirements apply; due process favors evidentiary hearing.
Appellate court affirms denial of 1.540(b) relief but reverses the temporary appellate fee award due to lack of proper hearing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Fee award without a hearing?	Former Wife; Husband's ability to pay supports award.	Former Wife's entitlement supported by record; hearing not required here.	Reversed; hearing required before fee award
Reasonableness and necessity findings?	Must prove reasonableness and necessity with evidence.	Trial court could rely on prior notices and record.	Must be determined at an evidentiary hearing

Campbell v. Campbell, 46 So.3d 1221 (Fla. 4th DCA 2010) (abuse of discretion standard for fee awards)
Jones v. Jones, 671 So.2d 852 (Fla. 5th DCA 1996) (need and ability to pay; evidentiary basis required)
Davis v. Davis, 613 So.2d 147 (Fla. 1st DCA 1993) (specific findings required for fee awards)
Baker v. Baker, 35 So.3d 76 (Fla. 2d DCA 2010) (reasonableness and necessity must be proven)
Chhouri v. Chhouri, 2 So.3d 987 (Fla. 2d DCA 2008) (fee awards require evidentiary support)
McIlveen v. McIlveen, 644 So.2d 612 (Fla. 2d DCA 1994) (hearing contemplated when deciding fee entitlement)
Matlack v. Matlack, 893 So.2d 656 (Fla. 4th DCA 2005) (due process requires hearing to determine fees)