Ortiz v. Ortiz
227 So. 3d 730
| Fla. Dist. Ct. App. | 2017Background
- Parties divorced; before final hearing they executed a Mediated Settlement Agreement resolving only child-related issues and reserving other issues. The Agreement stated each party would bear their own attorney’s fees for the present litigation.
- At the final dissolution hearing the trial court awarded the former wife statutory pre-judgment (pre-dissolution) attorney’s fees; the husband did not object at the hearing.
- After judgment, husband moved for reconsideration arguing the Mediated Settlement Agreement waived the wife’s entitlement to fees for the entire litigation.
- Trial court rejected the waiver argument; majority reasoned parties cannot contract away temporary support or attorney’s fees before final judgment.
- The appellate court affirmed that the wife did not waive her claim but reversed and remanded because the trial court’s order lacked the required written factual findings on entitlement, need/ability to pay, and reasonableness of fees.
- Concurrent opinion would have affirmed in full, arguing the appellant bore the burden to supply the hearing transcript and that, absent it, the trial court’s award should be presumed correct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Mediated Settlement Agreement waived the wife’s claim to pre-dissolution attorney’s fees | Ortiz: Agreement’s "each party shall be responsible for his/her own attorney’s fees" waived wife’s fee claim | Wife: Settlement reserved non-addressed issues; parties cannot pre-waive pre-judgment support/fees | Court: No waiver—parties cannot contract away temporary support/attorney’s fees before final judgment; affirmed |
| Whether wife was entitled to statutory pre-dissolution attorney’s fees | Wife: Requested fees under §61.16 based on need and husband’s ability to pay | Ortiz: Challenged entitlement post-judgment (raised in reconsideration) | Court: Entitlement requires trial-court findings on need and ability to pay; remanded for findings |
| Whether the fee award amount was properly supported | Wife: Court accepted fee request (no transcript of hearing in record) | Ortiz: Implicitly challenged amount via reconsideration | Court: Fee reasonableness requires findings applying Campbell/Rowe factors; absence of findings prevents review—remand for written findings |
| Whether appellate record inadequacy (no hearing transcript) precludes reversal | Ortiz: did not supply transcript; concurrence argues this prevents challenging factual findings | Majority: Even without transcript, written judgment must contain required findings; lack of findings mandates remand | Court: Majority remands for findings; concurrence would affirm due to inadequate record |
Key Cases Cited
- Belcher v. Belcher, 271 So.2d 7 (Fla. 1972) (parties may not waive temporary support/fees before final judgment)
- Lashkajani v. Lashkajani, 911 So.2d 1154 (Fla. 2005) (same principle applied)
- Schecter v. Schecter, 109 So.3d 833 (Fla. 3d DCA 2013) (pre-judgment fee waiver invalid)
- Derrevere v. Derrevere, 899 So.2d 1152 (Fla. 4th DCA 2005) (need and ability to pay govern fee entitlement under §61.16)
- Campbell v. Campbell, 46 So.3d 1221 (Fla. 4th DCA 2010) (factors for determining reasonable attorney’s fees)
- Schwartz v. Schwartz, 965 So.2d 832 (Fla. 1st DCA 2007) (fee-reasonableness factors affirmed)
- Perez v. Perez, 100 So.3d 769 (Fla. 2d DCA 2012) (trial court must make specific factual findings on entitlement)
- Rowe v. Rodriguez-Schmidt, 128 So.3d 158 (Fla. 2d DCA 2013) (court must set forth findings justifying specific amount awarded)
- Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979) (appellate presumption of correctness; appellant bears burden to show error)
- E & A Produce Corp. v. Superior Garlic Int’l, Inc., 864 So.2d 449 (Fla. 3d DCA 2003) (lack of transcript can preclude review of fee findings)
- Guardianship of Halpert v. Rosenbloom, 698 So.2d 938 (Fla. 4th DCA 1997) (written order facially lacking required findings warrants reversal)
- Fowler v. First Fed. Sav. & Loan Ass’n of Defuniak Springs, 643 So.2d 30 (Fla. 1st DCA 1994) (absence of findings and transcript can compel remand for evidentiary hearing)
- Macarty v. Macarty, 29 So.3d 434 (Fla. 2d DCA 2010) (award lacking findings on hours and rates reversible despite incomplete appellate record)