Perez v. Perez
100 So. 3d 769
| Fla. Dist. Ct. App. | 2012Background
- Parties: Bernard R. Perez (Husband) and Carmen Perez (Wife) in a prolonged dissolution action.
- Trial court awarded Wife $200,000 in attorney’s fees and costs payable by Husband; Husband appeals, Wife cross-appeals.
- Amended final judgment found Husband had ability to contribute but made no need/ability findings for Wife; court reserved jurisdiction to consider fees.
- Fee hearing occurred with evidence on some expenses and fees; the court made no findings at the hearing.
- The fee order contains inconsistent and inadequate factual findings (hourly rates, hours, and the amount awarded) and appears to mix need, ability to pay, sanctions, and payment plan without proper support.
- Court remands for new proceedings to cure these deficiencies and to articulate findings under Florida law (section 61.16) on need, ability to pay, and any sanctions or payment plan; remand may include additional evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Need and ability to pay findings required | Husband argues no adequate findings support need/ability. | Wife contends the evidence supports need and Husband's ability to pay. | Remand for explicit findings on need and ability to pay. |
| Insufficient findings on reasonable hours and rates | Husband asserts fee award lacks substantiation. | Wife asserts reasonable hours/rates support the award. | Remand for proper, non-inconsistent findings on hours and rates. |
| Sanction vs. non-sanction award unclear | Husband misconduct rationale unclear. | Wife argues sanction concept under Rosen/Tescalamentos. | Remand to clarify basis and impact of any misconduct-related award. |
| Payment plan must be justified by facts | Husband argues payment terms lack factual basis. | Wife asserts plan is appropriate with supporting findings. | Remand to provide factual basis for the payment plan. |
| Overall award amount must be grounded in findings | Husband challenges arbitrary amount. | Wife seeks supported amount. | Remand to articulate specific findings justifying amount. |
Key Cases Cited
- Rosen v. Rosen, 696 So.2d 697 (Fla.1997) (need and ability to pay factors in fee awards)
- Balko v. Balko, 957 So.2d 15 (Fla. 2d DCA 2007) (consideration of need and ability to pay—not solely income)
- Rogers v. Rogers, 12 So.3d 288 (Fla. 2d DCA 2009) (require findings on entitlement and justification for the amount)
- Wallace v. Wallace, 46 So.3d 1118 (Fla. 2d DCA 2010) (mandatory factual findings supporting entitlement to fees)
- Perrin v. Perrin, 795 So.2d 1023 (Fla. 2d DCA 2001) (need and ability to pay considerations in fee awards)
- Esaw v. Esaw, 965 So.2d 1261 (Fla. 2d DCA 2007) (adequate findings required to support fee award)
- Sharon v. Sharon, 35 So.3d 962 (Fla. 2d DCA 2010) (reversal where award not based on reasonable hours/rates)
- Lowman v. Lowman, 724 So.2d 648 (Fla. 2d DCA 1999) (need for factual basis when imposing payment plan)