115 So. 3d 1069
Fla. Dist. Ct. App.2013Background
- Dissolution of marriage in 2010; final judgment incorporated the marital settlement agreement (MSA).
- MSA contained a bilateral attorney’s fees provision: default by either party triggers fee liability for the other.
- Former wife filed emergency motion for sole custody and contempt alleging noncompliance with timesharing.
- Trial court found no contempt and reaffirmed timesharing; later held fee hearing.
- Trial court awarded fees to former husband related to the contempt defense and treated the prevailing-party concept as bilateral.
- Appeal argues no default occurred and the fees provision was not triggered; court reverses and remands for recalculation under proper standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the MSA fee provision is triggered by a default | Former wife argues no default occurred. | Former husband contends default by wife or enforcement failure justified fees. | No default; provision not triggered. |
| Whether §57.105(7) applies to make fees reciprocal | Statute makes bilateral entitlement for prevailing party fees. | Provision was bilateral and not subject to unilateral reliance. | Statute does not create fee entitlement here; reverse and remand. |
| Proper standard to determine attorney’s fees on remand | Fees should follow standard §61.16 for awardable fees. | Fees should be limited to previous contempt-related work. | Remand to apply §61.16 standard for entire emergency motion. |
Key Cases Cited
- Zakian v. Zakian, 887 So.2d 549 (Fla. 4th DCA 2003) (MSA fee provisions tied to default, not necessarily to prevailing party)
- Vitale v. Vitale, 31 So.3d 970 (Fla. 4th DCA 2010) (Enforces fee provisions in MSAs)
- Stevens v. Zakrzewski, 826 So.2d 520 (Fla. 4th DCA 2002) (Contract interpretation of marital settlement agreements; fees are enforced)
- Indem. Ins. Co. of N. Am. v. Chambers, 732 So.2d 1141 (Fla. 4th DCA 1999) (§57.105(7) bilateral prevailing-party fee concept)
- Fla. Hurricane Prot. & Awning, Inc. v. Pastina, 43 So.3d 893 (Fla. 4th DCA 2010) (Statute to even the playing field, not broaden terms)