Alfonso Perez-Palma v. Nathalie Rodriguez

• Court: District Court of Appeal of Florida
• Decided: April 30, 2025
• Docket: 3D2024-0251
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 30, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-0251 Lower Tribunal No. 22-6775 ________________

Alfonso Perez-Palma, Appellant,

vs.

Nathalie Rodriguez, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Scott M. Bernstein, Judge.

Sandy T. Fox, P.A., and Sandy T. Fox and Sara E. Ross, for appellant.

Abramowitz and Associates, and Jordan B. Abramowitz, for appellee.

Before LOGUE, C.J., and SCALES, and LOBREE, JJ.

SCALES, J.

On Parties’ Motions for Appellate Level Fees In this appeal of a final judgment (and interlocutory order on a case

management conference) entered in a paternity case (and for related relief),

both parties seek appellate level fees, relying exclusively on section 742.045

of the Florida Statutes. That provision reads, in relevant part, as follows:

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.

§ 742.045, Fla. Stat. (2025).

Florida’s district courts are split on whether section 742.045 provides

a basis for entitlement to appellate level fees. Both the Fourth District and

the Fifth District, sitting en banc, have determined that the statute does

provide a basis for appellate level fees. McNulty v. Bowser, 233 So. 3d 1277

(Fla. 5th DCA 2018); Beckford v. Drogan, 216 So. 3d 1 (Fla. 4th DCA 2017).

The Sixth District, certifying conflict with those Courts’ opinions, has come to

the opposite conclusion. C.T. v. T.G., 397 So. 3d 219 (Fla. 6th DCA 2024).

After our careful consideration of the issue and our being persuaded

by Judges Klingensmith and Eisnaugle’s cogent dissenting opinions in

Beckford and McNulty, respectively, we align ourselves with the Sixth

District. In a parallel statute – addressing dissolution of marriage, as

2 opposed to paternity, proceedings – the Florida Legislature chose to

expressly authorize the recovery of fees in appellate proceedings, as follows:

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 or maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.

§ 61.16(1), Fla. Stat. (2025) (emphasis added).

For whatever reason, the Legislature has chosen not to include similar

language in the statute authorizing trial courts to award fees in paternity

actions, and we are powerless to insert a provision into a statute that the

Legislature has not included in the statute’s text. See Hayes v. State, 750

So. 2d 1, 4 (Fla. 1999) (“We are not at liberty to add words to statutes that

were not placed there by the Legislature.”). As Judge Klingensmith noted in

his Beckford dissent: “If the Legislature had intended to extend the effect of

this section to other proceedings separate and apart from those maintained

in the lower tribunal, it would have so stated.” Beckford, 216 So. 3d at 3.

We, therefore, deny both parties’ motions seeking appellate level fees,

and we certify conflict with McNulty and Beckford.

Motions denied; conflict certified.