Posted by Nydia Streets of Streets Law in Florida Child Custody
Can attorney’s fees be awarded in a Florida paternity case? Florida law does allow for attorney’s fees and costs to be paid in most family law cases, including paternity cases, based on the relative financial circumstances of the parties. A party who earns substantially more income than the other party might be ordered to pay the other party’s reasonable attorney’s fees and costs. This was an issue in the case Alarcon v. Dagen, 3D22-2027 (Fla. 3d DCA November 1, 2023).
In this case, the parties went to trial before one judge on the eve of the judge’s retirement. The judge made his findings by email to both parties and instructed them to jointly submit a proposed final judgment. When the parties could not agree on the language in the final judgment, the successor judge refused to sign the final judgment. A second trial therefore had to be held which resulted in the father being granted majority time-sharing and sole parental responsibility. The father then moved for fees under Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997). The appellate opinion cites that the trial court found the mother’s conduct to be “‘hypocritical, without merit and contrary to the best interests of the child’ and her position ‘largely meritless.’ The order further reflected the mother had previously failed to fully comply with a court-ordered speech therapy schedule and expressed unsubstantiated concerns the child was in danger.” The mother was ordered to pay $25,000 in attorney’s fees to the father and she appealed.
The appellate court noted “In the seminal case of Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997), the Florida Supreme Court reiterated the longstanding principle that any determination of attorney’s fees in dissolution, support, and time-sharing cases must begin with an assessment of the financial affairs of the parties. See id. at 700. This approach serves the laudatory purpose of ensuring ‘both parties . . . have a similar ability to obtain competent legal counsel.’” The court further noted that Rosen has its limits such that “where ‘an action is frivolous or spurious or was brought primarily to harass the adverse party, . . . the trial court has the discretion to deny a request for attorney’s fees to the party bringing the suit.’ Id. at 701. Notably, however, the court did not expressly authorize granting fees against the proponent of such a suit.”
Noting how other courts of appeal have handled similar requests for fees using the Rosen case, the appellate court reasoned “The order on appeal contains no discussion of the financial resources of the parties, and there is no evidence of record establishing the father’s need and the mother’s ability to pay. Rather, the parties’ financial affidavits demonstrate the father’s wages and resources far exceed those of the mother. Indeed, in prior proceedings, the father complained the mother failed to meet her monthly obligations to creditors.”
The appellate court concluded “While we are mindful that high-conflict disputes have the potential to strain already limited judicial resources, fee awards in derogation of the traditional rubric of need and ability should not extend to run-of-the-mill custody cases. Instead, they are reserved for the most egregious of litigation conduct. [internal citations omitted]. Here, ‘[w]hile the trial court viewed the mother’s actions as selfish and contrary to the best interests of the child,’ such findings are insufficient, in and of themselves, to justify an award of fees. [internal citation omtted]. The remaining findings fell short of establishing the mother engaged in vexatious conduct, and the second trial was not necessitated by frivolity or hostile litigation, but rather a failing of the judicial process. Under these circumstances, the fee award cannot be sustained. Accordingly, we reverse and remand for further proceedings.”
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