Opinion
Case No. 2D19-3174
03-12-2021
Robert A. HERCE, Appellant, v. Frances MAINES f/k/a Frances M. Herce, Appellee.
Robert A. Herce, pro se. Ellen E. Ware and Bridget Remington of Ware Law Group, Tampa, for Appellee.
Robert A. Herce, pro se.
Ellen E. Ware and Bridget Remington of Ware Law Group, Tampa, for Appellee.
LaROSE, Judge.
Robert A. Herce (the Former Husband) appeals a final order awarding Frances Maines f/k/a Frances M. Herce (the Former Wife) $34,292.47 in attorney's fees and costs. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). The trial court exceeded its limited role in reviewing the corrected report and recommendation of the general magistrate (GM). Thus, we reverse.
Background
The parties divorced in 2005. The final judgment of dissolution ordered the Former Husband to pay $3500 a month in alimony and obtain life insurance to secure that obligation. In a 2008 contempt order, the trial court directed the Former Husband to provide the Former Wife annual written proof that he maintained a life insurance policy for at least $150,000. The Former Wife moved for contempt in 2013 and 2014 based on the Former Husband's failure to pay alimony and to send proof of insurance. The Former Husband complied with his alimony obligation; the insurance dispute continued.
On March 31, 2014, the Former Husband sent the Former Wife a letter from his life insurance company stating that she was the beneficiary of a $150,000 policy, or entire policy proceeds, if less. For her part, the Former Wife issued a subpoena to the life insurance company, requesting the Former Husband's life insurance file. She received the file on April 3, 2014. The file verified that the Former Husband had more than $150,000 in unencumbered insurance available on his $250,000 policy. Yet, a contempt hearing proceeded for the Former Husband's alleged failure to provide annual written proof of the insurance coverage.
The GM found the Former Husband in contempt for violating the 2008 contempt order. The GM found there was no need for a purge because the Former Husband provided the insurance information before the hearing. Judge Laurel M. Lee, in reviewing the GM's report and recommendation, concluded that the Former Husband complied with the 2008 contempt order before the hearing. Consequently, he could not be subject to contempt. Judge Lee dismissed the Former Wife's contempt motion as moot in June 2015. On the Former Wife's motion for rehearing, Judge Lee reserved jurisdiction on the issue of attorney's fees. Judge Lee rejected the Former Wife's claim that the Former Husband failed to provide sufficient proof of life insurance coverage. The Former Wife did not appeal.
The GM held a hearing on attorney's fees. The Former Wife requested fees under section 61.16, Florida Statutes (2017). The parties stipulated that the Former Husband had the ability to pay and the Former Wife had a need for fees. The GM initially found: "The Former Husband never provided proof that life insurance was unencumbered. Instead, the Former Wife independently obtained proof that the policy was unencumbered on or about April 3, 2014. Accordingly[,] attorney['s] fees and costs incurred after this time were not reasonably incurred by the Former Wife." (Footnote omitted). In a corrected report and recommendation, the GM found that:
The Former Husband provided proof that life insurance was unencumbered prior to a hearing on the Former Wife's motion for contempt. Additionally[,] the Former Wife independently obtained proof that the policy was unencumbered on or about April 3, 2014. Accordingly[,] attorney['s] fees and costs incurred after this time were not reasonably incurred by the Former Wife.
(Footnotes omitted). The GM recommended granting the Former Wife's "attorney['s] fees and costs incurred through April [3,] 2014." The GM noted that the Former Wife did not engage in bad faith or excessive litigation.
At a hearing on the Former Wife's exceptions, Judge Melissa Polo disagreed with Judge Lee's finding that the contempt issue was moot and concluded that the Former Husband never complied with the insurance obligation. Judge Polo stated, "I'm just saying, I see it differently. ... [T]hat doesn't mean I have to accept [Judge Lee's findings]. I can see things differently. ... and reasonable minds differ." The Former Husband's counsel replied that "the court is bound by what Judge Lee ruled. It has not been appealed." Judge Polo responded, "l'm not overruling them and overturning them or reversing them."
The Former Wife's counsel argued that the GM applied the incorrect law because attorney's fees did not become unreasonable when she did not prevail. Yet, the Former Wife's counsel agreed that the attorney's fees were "too large," "huge," "ridiculous," and "outrageous." But, she contended that the Former Wife should not have to pay her own fees when the Former Husband has the ability to pay and the Former Wife has the need.
Judge Polo concluded that the GM's finding that attorney's fees incurred after April 3 were unreasonable was not supported by competent substantial evidence because the Former Husband did not cure the contempt issue himself. In a March 5, 2018, written order, Judge Polo found that the GM "misapplie[d] the law, as it recommends denial of the Former Wife's pre and/or post-April 3, 2014, fees and costs without findings of excessive litigation, misconduct, or other nonfinancial circumstances warranting denial of those fees and costs, to which the Former Wife would otherwise be entitled." Judge Polo granted the "Former Wife's request for payment by the Former Husband of all of her reasonable attorney's fees costs and suit money, pre and post-April 3, 2014, as to entitlement ... without limitation by date or legal theory." The trial court later determined the amount and entered the final order on appeal.
Discussion
The Former Husband argues that Judge Polo abused her discretion by awarding attorney's fees and rejecting the GM's findings, which conformed to Judge Lee's prior ruling that the Former Wife's contempt motion was moot by April 3, 2014. He also claims that Judge Polo erroneously reweighed the evidence to reverse the mootness ruling and that the GM's ruling "that the fees after [April 3, 2014,] were not ‘reasonably’ incurred, ... is certainly a finding of ‘other relevant circumstances.’ "
The Former Wife contends that the trial court properly awarded fees under section 61.16 based on the parties' relative financial positions where there was no evidence of bad faith, frivolous litigation, or "other relevant circumstances" that would require denial. The Former Wife argues that Judge Lee's ruling concluded only that the Former Husband could not be held in contempt; it did not preclude an award of attorney's fees.
"Once a trial court appoints a magistrate to take testimony and make findings, it loses the prerogative of substituting its judgment for that of the magistrate"; the trial court assumes an appellate role. Cerase v. Dewhurst, 935 So. 2d 575, 578 (Fla. 3d DCA 2006). "[T]he trial court's review of the general magistrate's recommendations is limited to determining whether the general magistrate's findings of fact are supported by competent substantial evidence, and whether the general magistrate either made clearly erroneous legal conclusions or misconceived the legal effect of the evidence." S.V. v. Dep't of Child. & Fams., 178 So. 3d 421, 423 (Fla. 3d DCA 2015) (citing Cerase, 935 So. 2d at 578 ).
" Section 61.16(1) allows the trial court to ‘order a party to pay a reasonable amount for attorney's fees, suit money, and the cost to the other party’ in a dissolution action ‘after considering the financial resources of both parties.’ " Allen v. Juul, 278 So. 3d 783, 784 (Fla. 2d DCA 2019).
"In assessing a request for attorney's fees, the trial court may consider relevant factors: ‘such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.’ "
Id. (emphasis added) (quoting Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997) ). The trial court must "take into consideration and make specific detailed findings of fact regarding the parties' financial resources and any of the Rosen factors that are relevant to its determination" of attorney's fees. Allen, 278 So. 3d at 785-86.
Initially, we recognize that Judge Lee's order dismissing the Former Wife's contempt motion as moot was final. See generally Miller v. Miller, 959 So. 2d 421, 423-24 (Fla. 2d DCA 2007) (explaining that "orders disposing of postdissolution contempt motions are ‘final’ " (citations omitted)); see, e.g., Quillen v. Quillen, 247 So. 3d 40, 44 n.1 (Fla. 1st DCA 2018) (noting that the order dismissing the contempt motion as moot was final). Judge Lee's reservation of jurisdiction for attorney's fees did not affect finality. See HSBC Bank USA, Nat'l Ass'n ex rel. Fremont Home Loan Tr. 2005-B, Mortg.-Backed Certificates, Series 2005-B v. Buset, 216 So. 3d 701, 703 (Fla. 3d DCA 2017) ("A trial court's reservation of jurisdiction to award prevailing party attorney's fees or impose sanctions are collateral matters to the main dispute, and do not affect the finality of a judgment."). There was no pending rehearing motion or appeal pertaining to Judge Lee's order at the time Judge Polo considered attorney's fees.
Accordingly, the GM and Judge Polo lacked authority to modify Judge Lee's rulings. See Pelphrey-Weigand v. Weigand, 283 So. 3d 822, 827 (Fla. 2d DCA 2019) ("The rule is firmly established ... that the trial [c]ourt loses jurisdiction of a cause after a judgment or final decree has been entered and the time for filing petition for rehearing or motion for new trial has expired or same has been denied." (quoting LibertyIns. Corp. v. Milne, 98 So. 3d 613, 615 (Fla. 4th DCA 2012) )); cf. Weinberg v. Weinberg, 137 So. 3d 600, 603 (Fla. 4th DCA 2014) (holding that the trial court had the inherent authority to modify an interlocutory contempt order prior to final judgment where the order "reserved ruling on enforcement of the per diem fine"). Judge Polo could not revisit Judge Lee's finding that the Former Husband was not in contempt. See Pelphrey-Weigand, 283 So. 3d at 827 ("The first order denying Weigand's request for fees and costs incurred in the proceeding on the motion to set aside the dissolution judgment operated to bar further consideration of that entitlement. Insofar as the order under review revisited the fee and costs entitlement and granted them to Weigand for that proceeding, it [violated res judicata]."). Additionally, the Former Wife waived the merits of Judge Lee's findings. See Small v. Devon Condo. B Ass'n, 141 So. 3d 574, 578 (Fla. 4th DCA 2014) (holding that the owner "waived the merits of the contempt finding" when it failed to appeal the original contempt finding and only appealed the enforcement order).
As for attorney's fees, the GM properly considered the evidence, applied Judge Lee's findings, and analyzed the law to conclude that fees after April 3, 2014, were unreasonable. The GM found that the Former Wife was entitled to fees expended to secure the Former Husband's compliance. See Joannou v. Corsini, 543 So. 2d 308, 311-12 (Fla. 4th DCA 1989) (affirming "the award of sanctions ... to compensate appellee for his attorney's fees expended in securing compliance with the valid order of the trial court" (citing Pollock v. T&M Invests., Inc., 455 So. 2d 573 (Fla. 3d DCA 1984) )). Once the Former Husband complied, the Former Wife's insistence on contempt was moot, as Judge Lee found. See generally Baldwin v. Baldwin, 204 So. 3d 565, 567 (Fla. 5th DCA 2016) ("An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect."). The Former Wife incurred fees over a fight that was over; fees that her counsel conceded were "too large," "huge," "ridiculous," and "outrageous."
The GM permissibly considered the results and circumstances of the case to find that the Former Wife unreasonably incurred fees after the contempt issue became moot. See Hallac v. Hallac, 88 So. 3d 253, 254, 258 (Fla. 4th DCA 2012) (affirming the "denial of attorney's fees to the wife after the date of the settlement offer" where wife "unreasonably refused a favorable settlement offer. ... because [ Rosen ] permits a trial court to consider results obtained in determining a [ section 61.16 ] attorney's fees award. ... Rosen allows a diminution of an award based upon the results obtained."). Section 61.16 does not require the GM to ignore the Rosen factors and award the Former Wife attorney's fees merely because she had a need and the Former Husband had the ability to pay. See Rosaler v. Rosaler, 226 So. 3d 911, 914 (Fla. 4th DCA 2017) ("The purpose of section 61.16 is to ensure that both parties can obtain competent representation. It does not enable a party to engage in misconduct, rack up a massive amount of fees, and then force the other party to pay merely because they have the means to do so. The trial court did not abuse its discretion in awarding Former Wife only a portion of the fees she sought.").
The trial court recited no record facts indicating that the GM's recommendation was unsupported by the evidence. Cf. Humerickhouse v. Humerickhouse, 932 So. 2d 1142, 1146 (Fla. 2d DCA 2006) (explaining that the trial court's conclusion that wife's attorney's actions were "needless" was "unsupported by the evidence and contrary to the law" where "[t]he record show[ed] that her attorney provided competent representation"); Levy v. Levy, 900 So. 2d 737, 748-49 (Fla. 2d DCA 2005) (reasoning that "the Wife's refusal to accept any of the Husband's settlement offers provides no evidentiary support for the trial court's conclusion that the Wife's litigation conduct was ‘spurious’ " and "that would justify a denial—either in whole or in part—of an award of attorney's fees and costs to her on account of litigation misconduct"). Instead, and contrary to Judge Lee's prior order, the trial court believed that the Former Husband never complied with the 2008 contempt order. But this belief ignores the circumstances of this case. The trial court failed to expose the perceived shortcomings in the GM's corrected report and recommendation. Competent substantial evidence supports the GM's findings; the trial court erred in failing to adopt them. See Robinson v. Robinson, 928 So. 2d 360, 362-63 (Fla. 3d DCA 2006) ("As we conclude that the general master's findings and recommendations were supported by the evidence, we conclude that the trial court abused its discretion in reweighing the evidence, and supplanting its opinion for that of the master. ... As there was competent, substantial evidence in the record to support the general master's findings, we find that the trial court erred when it failed to adopt them.").
Finally, the trial court concluded that the GM misapplied the law by recommending a partial denial of fees "without findings of excessive litigation, misconduct, or other nonfinancial circumstances warranting denial of those fees and costs." The record shows that the GM considered the parties' financial positions and the Rosen factors. The GM made findings as to the Former Wife's conduct and the merits of the parties' positions in recommending the partial denial of fees. Further, bad faith and excessive litigation were merely factors that the GM considered when determining whether to award fees under section 61.16 and Rosen. See Rogers v. Wiggins, 198 So. 3d 1119, 1121 (Fla. 2d DCA 2016) (citing Rosen, 696 So. 2d at 700 ). The absence of those factors did not require the GM to grant all of the Former Wife's requested attorney's fees. See Hallac, 88 So. 3d at 254 (affirming partial denial of attorney's fees to wife and reversing award of attorney's fee to husband where wife did not engage in vexatious conduct). Therefore, the GM did not misconceive the law or make clearly erroneous legal conclusions.
Conclusion
The trial court overstepped its bounds to the extent that the order before us purported to overturn Judge Lee's mootness ruling. See Pelphrey-Weigand, 283 So. 3d at 827. Moreover, the trial court's limited role did not permit it to reject the GM's factual findings that were supported by the evidence. See Cerase, 935 So. 2d at 578. Nor could the trial court substitute its judgment for that of the GM where the GM did not misconceive the law or commit error in recommending the partial denial of attorney's fees and costs. See id. Accordingly, we reverse the trial court's order granting the Former Wife's exceptions to the GM's corrected report and recommendation. We remand for further proceedings consistent with this opinion.
Reversed and remanded.
MORRIS and LUCAS, JJ., Concur.