Viscito v. Viscito
225 So. 3d 959
| Fla. Dist. Ct. App. | 2017Background
- Appeal arises from dissolution-of-marriage proceedings; this Court previously affirmed the final judgment and conditionally granted appellant Barbara Viscito’s motion for appellate attorney’s fees and remanded to the trial court to fix the amount pursuant to Rosen v. Rosen.
- Charles Viscito moved for review of the trial court’s subsequent order and judgment awarding $63,364 in appellate attorney’s fees and $4,208 in costs to Barbara.
- The Third DCA’s December 21, 2016 order used the term “conditionally granted” and directed the trial court to fix fees pursuant to Rosen (which requires a need-and-ability-to-pay analysis).
- At the fee hearing the trial court treated the remand as requiring only an assessment of a reasonable amount and refused to hear further argument on need and ability to pay.
- No evidence was presented at the fee hearing about either party’s financial resources, the wife’s need for fees, or the husband’s ability to pay.
- The Third DCA found the fee and costs award unsupported by competent, substantial evidence and an abuse of discretion and remanded for proper Rosen/§61.16 consideration.
Issues
| Issue | Viscito (Charles) Argument | Viscito (Barbara) Argument | Held |
|---|---|---|---|
| Whether the trial court lawfully awarded appellate attorney’s fees without Rosen findings | The remand required consideration of need and ability to pay; trial court erred by fixing only amount | The award of fees and costs as fixed was appropriate | Trial court abused discretion; remand required because Rosen/§61.16 findings were not made |
| Whether this Court’s “conditionally granted” remand required the trial court to assess entitlement (need/ability) vs. only reasonableness | Remand required entitlement inquiry under Rosen before awarding fees | The trial court interpreted remand as requiring only reasonableness/amount fixing | The phrase “conditionally granted” and Rosen mandate means the trial court must consider need and ability unless the appellate order clearly limited its role |
| Whether the fee/cost award was supported by competent substantial evidence | Argued no evidence on finances, need, or ability was presented | Argued fees and costs awarded were reasonable | No competent substantial evidence on financial resources or need/ability; award reversed and remanded |
| Whether costs award also required Rosen/§61.16 analysis | Costs must be assessed under same need/ability framework unless appeal frivolous | Costs award stands as reasonable | Costs also require consideration of relative financial resources under §61.16; remand required |
Key Cases Cited
- Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997) (establishes need-and-ability-to-pay framework for family-law fee awards)
- Viscito v. Viscito, 214 So. 3d 736 (Fla. 3d DCA 2017) (prior appellate decision in the same matter; remand context)
- Randall v. Randall, 930 So. 2d 840 (Fla. 3d DCA 2006) (explains remand options: either fix amount or remand to establish entitlement under Rosen)
- Gerhardt v. Gerhardt, 738 So. 2d 485 (Fla. 4th DCA 1999) (clarifies that appellate grants under §61.16 are tentative and trial court must determine need and ability)
- White v. White, 683 So. 2d 510 (Fla. 4th DCA 1996) (related Fourth DCA precedent on appellate fee remands under §61.16)
- Sierra v. Sierra, 505 So. 2d 432 (Fla. 1987) (attorney-fee awards must be supported by competent, substantial evidence and adverse party given opportunity to be heard)
- Rados v. Rados, 791 So. 2d 1130 (Fla. 2d DCA 2001) (noting exception when record clearly shows entitlement based on relative finances)