Rosen v. RosenRosen v. Rosen
The facts of this case are as follows. Gene and Eileen Rosen were married for nine years, during which time they had two children. The marriage was dissolved in 1979, and the parties have engaged in continuous litigation since that time.1 In 1991, Ms. Rosen filed a petition seeking an award of attorney‘s fees and costs, an increase in alimony and child support, reimbursement for payment of a psychologist‘s bill, and other relief, including interest on the arrearage. In turn, Mr. Rosen sought a reduction in alimony, a reduction in child support, and a change in the alimony from permanent to rehabilitative. At issue in this proceeding are (1) Ms. Rosen‘s request for attorney‘s fees, which the
On appeal, the district court reversed the attorney‘s fee award, stating that it “should be reconsidered in light of the reversal of many of the benefits originally received by [Ms. Rosen].” Rosen, 659 So.2d at 370. The district court also reversed the trial court‘s denial of Mr. Rosen‘s request to change the permanent alimony to rehabilitative.
As indicated above, we accepted review of this case on the attorney‘s fees issue based on direct conflict with a number of cases providing that a trial court cannot apply a prevailing party or results obtained standard in determining whether or not to award fees in family law cases.
ATTORNEY‘S FEES
Any determination regarding an appropriate award of attorney‘s fees in proceedings for dissolution of marriage, support, or child custody begins with
(1) The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney‘s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.... In determining whether to make attorney‘s fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties, unless an appellate party‘s cause is deemed to be frivolous.
The purpose of this section is to ensure that both parties will have a similar ability to obtain competent legal counsel. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We reaffirm the importance of that purpose today. As we stated in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828, 835 (Fla.1990), in which we discussed
Our case law implementing this statute requires a judge to consider the needs of the party seeking a fee and the financial resources of the parties to assure that both parties receive adequate representation. A significant purpose of this fee-authorizing statute is to assure that one party is not limited in the type of representation he or she would receive because that party‘s financial position is so inferior to that of the other party.
In Canakaris, we noted that it is not necessary that one spouse be completely unable to pay attorney‘s fees for the trial court to require the other spouse to pay those fees. In other words, to ensure that both parties have similar access to competent legal counsel, the trial court must look to each spouse‘s need for suit money versus each spouse‘s respective ability to pay.
In Quanstrom, we reevaluated the lodestar method for determining appropriate attorney‘s fee awards in litigation generally. Essentially, under the lodestar approach, a court multiplies the number of hours reasonably expended by a reasonable hourly rate. This produces the “lodestar,” which is the objective basis for the award of attorney‘s fees. Florida Patient‘s Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985). Once the lodestar figure is calculated, a court adds to or subtracts from that figure based on the contingency risk factor and the results obtained. In reexamining the lodestar approach in Quanstrom, we emphasized that different categories of cases may require different criteria to achieve the legislative or court objectives in authorizing a reasonable attorney‘s fee. Specifically, we stated that attorney‘s fees in chapter 61 proceedings are governed by
A review of district court opinions reflects significant distinctions in the calculation of attorney‘s fees under
We resolve this conflict by pointing out that proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law. See
THE ALIMONY ISSUE
In the next issue, Ms. Rosen argues that the district court erroneously converted her alimony from permanent to rehabilitative. As noted previously, this family law proceeding has encompassed numerous appeals since its inception. Initially, the wife was awarded lump sum alimony. The district court reversed the lump sum award, relying on our decision in Canakaris, and found that Ms. Rosen was entitled to permanent periodic alimony. In doing so, the district court noted the following:
Although Mrs. Rosen has teaching experience and a master‘s degree in elementary education, she has worked very little since the marriage and has devoted almost all of her time to her duties as a homemaker and mother.
Rosen I, 386 So.2d at 1270. On remand, the trial court awarded Ms. Rosen alimony in the amount of $2000 per month, which Mr. Rosen appealed. The district court found the award to be “fully justified both by the record and our prior opinion.” Rosen II, 426 So.2d at 1053. In subsequent litigation, the trial court reduced Ms. Rosen‘s alimony award from $2000 to $500 per month. In reversing that reduction, the district court stated:
We reverse a judgment that modified a permanent periodic alimony award previously affirmed by this court because the bases for modification ... do not reflect any significant change in circumstance from the time of entry of the original award. Specifically, the wife‘s employability was known at the time of the previous award and, thus, could not be considered.
Rosen IV, 528 So.2d at 42 (emphasis added) (citations omitted). In 1991, Ms. Rosen petitioned the trial court to enforce the district court‘s mandate in Rosen IV. She also sought an increase in child support and alimony; Mr. Rosen sought a decrease in child support and alimony and a change in the type of alimony. The trial court made the following findings pertinent to this issue: (1) that Ms. Rosen is dependent and the need to maintain her children and the home they share interferes with gainful employment outside the home at this time; (2) that she is “definitely in need of alimony“; (3) that there has been “a substantial change in circumstances as to the financial condition of [Ms. Rosen]“; and (4) that there is no finding that [Ms. Rosen] is underemployed or unemployed and the evidence is that she has chosen to stay at home and work in the home. Based on these findings, the trial judge ordered that Ms. Rosen‘s alimony be increased from $2000 per month to $2750 per month. Child support was also increased. The judge denied the husband‘s request for a reduction in child support and alimony. The trial judge also granted in part and denied in part other relief requested by the parties. It is this last order that is the subject of the most recent appeal and our review here. The district court affirmed the increase in alimony from $2000 to $2750 per month and the increase in child support. In doing so, however, the district court also converted the alimony from permanent to rehabilitative, stating:
The former wife has a master‘s degree in education, the children will both be in college by the fall of 1995, and there is no justifiable reason why the former wife should not enter the work force. We find
error in the award of permanent alimony rather than rehabilitative under the reasoning and dictates found in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Rojas v. Rojas, 656 So.2d 563 (Fla. 3d DCA 1995); Siegel v. Siegel, 564 So.2d 226 (Fla. 5th DCA 1990); Contogeorgos v. Contogeorgos, 482 So.2d 590 (Fla. 4th DCA 1986); Perry v. Perry, 448 So.2d 588 (Fla. 5th DCA 1984); Campbell v. Campbell, 432 So.2d 666 (Fla. 5th DCA 1983); James v. James, 443 So.2d 1029 (Fla. 5th DCA 1983); Crees v. Crees, 342 So.2d 1014 (Fla. 4th DCA 1977); Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974). We therefore convert the permanent alimony to rehabilitative alimony....
Rosen VI, 659 So.2d at 369. The decisions cited by the district court stand for the general proposition that it is an abuse of discretion to award permanent rather than rehabilitative alimony when a spouse has a clear ability to become financially independent at some point in the future.
Ms. Rosen contends that the district court was without authority to modify the alimony award given that her employability was contemplated and considered at the time of the original award. She asserts that the trial court made specific findings that she continues to be dependent and in need of alimony, and she argues that the district court itself in Rosen IV reversed a previous decrease in alimony because Ms. Rosen‘s “employability was known at the time of the previous award and, thus, could not be considered” in determining whether alimony should be altered. 528 So.2d at 43. She relies on a number of district court decisions in support of this argument. See, e.g., Long v. Long, 622 So.2d 622 (Fla. 2d DCA 1993); Allison v. Allison, 554 So.2d 1196 (Fla. 1st DCA 1989); Gray v. Lauscher, 537 So.2d 708 (Fla. 5th DCA 1989); Bashaw v. Bashaw, 412 So.2d 433 (Fla. 4th DCA 1982); Jaffee v. Jaffee, 394 So.2d 443 (Fla. 3d DCA 1981).
The issue presented is whether, as a principle of law, a trial judge has the authority to alter alimony from permanent to rehabilitative based, in part, on the same employability evidence that was presented in the initial dissolution proceeding, together with other changed circumstances. The district court‘s decision in Rosen IV does appear to prohibit the trial court from reconsidering employability status under the circumstances of this case. The other cases cited by Ms. Rosen, however, simply stand for the general proposition that circumstances that were contemplated by the final judgment or specifically agreed to by the parties may not be considered as a change in circumstances in subsequent modification proceedings. For example, in Jaffee, the parties entered into a marital settlement agreement in which they specifically agreed that the wife would receive permanent periodic alimony. In Bashaw, a change in alimony was sought based on financial considerations that were specifically reviewed by the trial judge at the time of the initial award. The other cases cited by Ms. Rosen are equally distinguishable.
We reject Ms. Rosen‘s position and the district court‘s statement in Rosen IV that employability status or the effect of having to stay at home to care for the parties’ children cannot be considered years later as a factor in a subsequent modification proceeding. Employability at the time of an initial alimony proceeding and employability years later can be vastly different, even when a party‘s educational background or job skills remain the same. Numerous circumstances can change the employability of the alimony recipient. Moreover, such changes can work both for and against an alimony recipient. It is important that trial judges be allowed to consider all relevant factors in making the types of decisions at issue. To hold otherwise would result in unjust decisions. As the findings in this case reflect, the demands of supervising and maintaining a home for minor children may justify a higher alimony award because the trial court has determined that it is in the parties’ best interests for one spouse to work within the home. Once the minor children have left the home, the justification for the initial alimony award may change. On the other hand, the employability of a party who has remained at home for many years may be diminished given the increased age of the party and the changing job market, even when the party possesses or may seek to possess an outstanding educational
Accordingly, we approve the district court‘s decision concerning the attorney‘s fee award and quash its decision concerning permanent and rehabilitative alimony. We approve Robbie, Davis, Peacon, Margulies, Adler, Meltzer, and Adams to the extent they are consistent with our findings regarding the attorney‘s fee issue; we disapprove the district court decisions noted above that are inconsistent. We disapprove Rosen IV to the extent it prohibited the reconsideration of Ms. Rosen‘s employability status in subsequent modification proceedings. We direct that the district court remand this case to the trial court for reconsideration under the principles articulated in this opinion.
It is so ordered.
KOGAN, C.J., and HARDING, WELLS and ANSTEAD, JJ., concur.
OVERTON, J., concurs in part and dissents in part with an opinion, in which GRIMES, J., concurs.
SHAW, J., recused.
OVERTON, Justice, concurring in part and dissenting in part.
The majority opinion will, in my view, substantially change the dynamics of family law proceedings and limit or deny access to the courts to parties in need. This decision can also result in more funds being paid for attorney‘s fees from family resources. This change is unnecessary and I emphatically dissent to that part of the majority‘s opinion which holds that the results obtained or prevailing party standard may be used as a factor in determining entitlement to attorney‘s fees in chapter 61 proceedings.
I do agree and concur that we should disapprove Rosen IV to the extent that it prohibited the reconsideration of Ms. Rosen‘s employability status in subsequent modification proceedings and concur with that part of the majority opinion. I dissent, however, from that part of the majority opinion that expressly approves those opinions holding that the results obtained or prevailing party standard may be used as a factor to be considered in setting attorney‘s fees and holds that the merits of the respective positions may be considered in setting attorney‘s fees. There is no question in my mind that, under this new principle, a party who has limited family resources will have a difficult time obtaining counsel for tough custody, support, or modification cases. This is because attorneys will not want to assume the risk of receiving less than a reasonable fee for representing an individual in a tough but legitimately justiciable issue.
In my view, this case is a major step backward in this Court‘s prior strong efforts to put both parties in family law proceedings on an equal footing. This holding of the majority has effectively overruled numerous cases from this and other courts holding that attorney‘s fees under
[T]he equitable considerations underlying our dissolution law compel the trial court to mitigate the harm an impecunious spouse would suffer where the other spouse‘s financial advantage accords him or her an unfair ability to obtain legal assistance.
... Where one spouse effectively is unable to pay for legal counsel and the other suffers no similar disability, the very purposes of Florida‘s dissolution statute are jeopardized and the trial court risks inequity.
(Citation omitted.) See also Quanstrom, 555 So.2d at 835 (“Our case law implementing this statute requires a judge to consider the needs of the party seeking a fee and the financial resources of the parties to assure that both parties receive adequate representation.“); Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla.1980)(purpose of section 61.16 is “to ensure that both parties will have similar ability to secure competent legal counsel“); Cummings v. Cummings, 330 So.2d 134, 136 (Fla.1976)(quoting with approval Mertz v. Mertz, 287 So.2d 691, 692-93 (Fla. 2d DCA 1973))(“[T]he purpose of awarding attorney fees under the new dissolution of marriage law has not changed, in our view, from the purposes contemplated by its predecessors; that purpose is to ensure that both parties will have reasonably the same ability to secure competent legal counsel.“); White v. White, 683 So.2d 510 (Fla. 4th DCA 1996); Brock v. Brock, 654 So.2d 163 (Fla. 1st DCA 1995); Fabre v. Levine, 618 So.2d 317 (Fla. 1st DCA), review denied, 629 So.2d 132 (Fla.1993); Allen v. Heinrich, 623 So.2d 540 (Fla. 2d DCA 1993); Chertoff v. Chertoff, 553 So.2d 179 (Fla. 3d DCA 1989); Hudgens v. Hudgens, 411 So.2d 354 (Fla. 2d DCA 1982). As these cases reflect,
The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney‘s fees ... to the other party.... In determining whether to make attorney‘s fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties, unless an appellate party‘s cause is deemed to be frivolous.
Through its ruling today, the majority has effectively made
I am sympathetic to the assertion that the use of a results obtained or prevailing party standard will halt the problems caused by the continued relitigation of decided issues and the harassment caused by the assertion of unjustified issues. There are, however, less detrimental methods of resolving these
The question should not be who won or lost; the question should be whether the issue presented was truly justiciable. Many issues in custody, support, visitation, and modification disputes are legitimately justiciable on both sides. Today‘s holding will substantially limit the ability of many spouses to bring such claims because of the lack of resources. For these reasons, I dissent from the majority‘s holding on this issue.
GRIMES, J., concurs.
Notes
In reaching our decision today, we note that the legislature amended section 61.16, effective July 1, 1996, to specifically provide in pertinent part that:
In those cases in which an action is brought for enforcement and the court finds that the noncompliant party is without justification in the refusal to follow a court order, the court may not award attorney‘s fees, suit money, and costs to the noncompliant party.