Posted by Nydia Streets of Streets Law in Florida Florida Divorce
When a party to a Florida divorce is accused of vexatious litigation, it means they are being accused of taking positions that are unreasonable and/or not supported by the law. If a court finds that a party was vexatious, that party can be ordered to pay the other party’s attorney’s fees and costs. This was an issue in the case Alvarez v. Salazar, 4D20-1363 (Fla. 4th DCA February 9, 2022).
During the course of their divorce case, the former wife accused the former husband of having a substance abuse problem, specifically that he drank alcohol excessively. An expert was appointed to evaluate the former husband and found that he did not have a substance abuse problem. After a trial, the court found no credibility in the former wife’s claims and awarded equal time-sharing to the parties. As part of child support, the court awarded to the former husband an offset to retroactive support for fees he paid for supervised visitation that was made necessary by the former wife’s claims which were later determined to be unfounded. The trial court also awarded attorney’s fees to the former husband for former wife’s vexatious litigation. The former wife appealed.
The appellate court reversed the attorney’s fee award. The court determined it was error for the trial court to award fees without considering the relative need and ability to pay of both parties. It held “In Rosen, the Florida Supreme Court held that section 61.16 allowed the consideration of secondary 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 . . . ; and the existence and course of prior or pending litigation.’ 696 So. 2d at 700. Although the trial court may consider secondary factors, it must also make findings as to the parties’ respective need and ability to pay to award fees under section 61.16.” The court continued “The trial court erred when it awarded Former Husband fees for Former Wife’s allegedly vexatious litigation under Rosen. See Hahamovitch, 133 So. 3d at 1022. Although Rosen allows fees for overlitigation, the trial court failed to make any findings regarding the parties’ ability to pay and need, which are required to grant fees under section 61.16. [internal citation omitted]. Without meeting this primary criterion, the trial court could not award fees against a vexatious litigant under Rosen. [internal citation omitted]. The final judgment also failed to make the appropriate factual findings that could support a vexatious litigation fee award under the inequitable conduct doctrine. [internal citation omitted]. The record shows the trial court found that Former Wife acted in bad faith only by making unilateral decisions regarding the minor child’s medical care. In sum, the trial court did not make express findings that Former Wife litigated in bad faith—only that some of her positions were unfounded. [internal citation omitted]. Additional factual findings were needed for us to ratify the conclusion that Former Wife litigated vexatiously.”
As to the child support, the court held “‘[T]he trial court should normally treat the costs of supervision as part of the child support calculations.’ Moore v. Yahr, 192 So. 3d 544, 545 (Fla. 4th DCA 2016). Therefore, the trial court erred when it held that all supervision costs should be offset against retroactive child support payments in the final judgment. [internal citation omitted]. Here, the trial court should have treated the cost of supervision as part of the child support calculation and only offset half of that amount when awarding retroactive child support.”
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