Marital Settlement Agreement

The parties had two children. The final judgment of dissolution of marriage, entered on November 29, 2005, incorporated the parties’ Marital Settlement Agreement, which provided, in relevant part, that: “Upon the termination of the Former Husband’s unallocated family support payments, the Former Husband would pay the Former Wife child support in an amount to be calculated in accordance with Florida child support guidelines.”

As the July 10, 2010 date for termination of the unallocated family support payments approached, the parties attempted unsuccessfully to negotiate a child support amount. Ultimately, both parties filed petitions seeking the establishment of a child support amount.

Throughout much of the proceedings, the Former Husband was not forthcoming as to the true nature of his financial condition. After being compelled by the court, he eventually filed an amended financial affidavit reflecting that a net worth of approximately $4.6 million, an amount far exceeding his net worth at the time of the dissolution. However, he continued to maintain that he had little or no income.

Ultimately, the trial court found that the Former Husband’s net income was to be calculated at $25,000 per month. By contrast, the Former Wife’s financial affidavit reflected that her liabilities exceeded the value of her assets. The trial court found her net income was $1,877 per month, and imputed an additional $1,900 per month to her based on ongoing financial support from her parents.

The trial court denied the Former Wife’s motion for attorney’s fees, despite that the Former Husband’s net income and net worth far exceeded her own, determining that:

(1) attorney’s fees were not recoverable because the proceeding was in the nature of a declaratory judgment action;

(2) the attorney’s fees provision in the Marital Settlement Agreement that  “The parties shall each be responsible for his or her own attorneys’ fees and costs associated with this matter” precluded an award of attorney’s fees; and

(3) the Former Wife did not have a need for an award of attorney’s fees because her parents had provided funds to pay for litigation expenses. The Former Wife appealed. The District Court disagreed with the trial court’s analysis and reversed:

1. “The instant case was not an equitable declaratory action to resolve the distribution of proceeds from the sale of jointly owned property. Rather, it was a proceeding to establish a child support obligation the type of action that falls squarely within the ambit of section 61.16.”

2. “Additionally, we question (but need not resolve) the continuing viability of [the decision relied upon by the trial court] in light of the Florida Supreme Court’s later decision in Bane v. Bane , 775 So.2d 938 (Fla. 2000). There, the supreme court determined that section 61.16 authorized an award of attorney’s fees to a party that was successful on a motion to set aside a property settlement agreement filed pursuant to Florida Rule of Civil Procedure

1.540(b). In doing so, the court emphasized that section 61.16 should be ‘liberally not restrictively construed to allow consideration of any factor necessary to provide justice and ensure equity between the parties.'”

3. “When an attorney’s fees provision in a marital settlement agreement does not contain specific language waiving attorney’s fees in future enforcement or modification proceedings, Florida courts have found that these fees are not waived.”

4. “Here, there was no language in the MSA reflecting an intent by either party to waive the right to seek an attorney’s fee award in a subsequent action to establish the former husband’s child support obligation upon the termination of his obligation to pay unallocated family support.”

5. “The purpose of section 61.16 is to ensure that both parties have similar ability to secure legal counsel . . . However, a litigant should not have to deplete his or her assets in order to pay legal fees when the other party has a far superior financial ability to pay for these costs.”

6. “[T]he trial court’s conclusion that the Former Wife did not have a ‘need’ for an award of attorney’s fees is not supported by the record.”

7. “The litigation below was contentious and protracted, in significant part because of the Former Husband’s reluctance to fully and accurately disclose his financial status.”

8. “While the evidence did establish that the Former Wife’s parents had provided the funds to pay her litigation expenses, the uncontroverted testimony was that those monies were provided as a loan. The fact that the Former Wife had not repaid any of the monies as of the date of the evidentiary hearing on the petition to establish child support is, under the facts of this case, indicative of [her] inability to do so and not, as the Former Husband argues, substantial proof of a gift.”

9. “On remand, the trial court is directed to award the Former Wife the entire amount of attorney’s fees she reasonably incurred in those proceedings below relating to the establishment of the Former Husband’s child support obligation.”

Caryi v. Caryi, 119 So.3d 508 (Fla. 5th DCA 2013)