DiNARDO v. DiNARDO

82 So. 3d 1102, 2012 WL 385484, 2012 Fla. App. LEXIS 1551
CourtDistrict Court of Appeal of Florida
DecidedFebruary 8, 2012
Docket2D10-3427
StatusPublished
Cited by2 cases

This text of 82 So. 3d 1102 (DiNARDO v. DiNARDO) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiNARDO v. DiNARDO, 82 So. 3d 1102, 2012 WL 385484, 2012 Fla. App. LEXIS 1551 (Fla. Ct. App. 2012).

Opinion

WALLACE, Judge.

Dawn Grace DiNardo (the Wife) appeals the trial court’s order denying her motion for attorney’s fees and costs filed after the entry of a final judgment dissolving her marriage to Anthony DiNardo (the Husband). The Husband cross-appeals the trial court’s denial of his postjudgment motion for attorney’s fees and costs. On the Wife’s direct appeal, we reverse and remand for further proceedings because the trial court failed to take into account all of the Husband’s income in determining the relative financial resources available to the parties. On the Husband’s cross-appeal, we affirm the circuit court’s order. The circuit court did not abuse its discretion in declining to award fees and costs to the Husband for the Wife’s litigation conduct based on the factors outlined in Ro-sen v. Rosen, 696 So.2d 697, 700 (Fla.1997).

I. THE FACTS AND PROCEDURAL BACKGROUND

The parties were married in 1984. They had two children. At the time of the final hearing in October 2006, one of the children had reached the age of majority. The other child was fifteen.

*1104 The Husband is a certified public accountant. During the marriage, he was employed by two successful real estate development companies. At the time of the final hearing, the Husband had been employed by his current employer for approximately thirteen years. The Husband’s base salary was $175,000. In addition to his base salary, the Husband received an automobile allowance of $6000 per year, an expense account at his employer’s club facilities, and other fringe benefits. The Husband also received bonus income. In its final judgment, the trial court made the following finding of fact concerning the Husband’s bonus income: “Although not guaranteed and in the sole discretion of his employer, the Husband has received regular and continuous bonuses nine (9) out of the thirteen (13) years he has been employed. His 2005 bonus, paid in Jan[.]Feb. 2006[,] was $110,000.” The trial court found that the Husband’s annual income was $291,000. The $291,000 figure included the Husband’s base salary of $175,000, the automobile allowance of $6000, and the bonus for 2005 of $110,000.

The Wife had not worked outside the home since the birth of the parties’ first child in 1988. However, the Wife had some expertise in photography. A vocational expert testified that the Wife could earn $24,000 per year from employment in a photography studio or $31,000 per year if she were self-employed. Nevertheless, the Wife would require some time and training to achieve either of these income levels. The trial court found that the Wife should be able to earn at least $15,000 annually for the three years after the dissolution of marriage while the parties’ younger child completed high school. In accordance with this finding, the trial court imputed $1250 per month income to the Wife following the dissolution of marriage.

Before the final hearing, the parties agreed to an equal division of their assets. In accordance with this equal distribution of property, each party was to receive assets valued at approximately $1,100,000. The trial court calculated the amount of the Wife’s passive income on the equitably divided assets as $780 per month.

Under the final judgment, the Husband was required to pay the Wife $2210 per month as support until the sale of the marital home. In addition, the Husband was required to pay $2400 per month in “carrying expenses” for the marital home — which the Wife would occupy — until the marital home sold. 1 Finally, the Husband was required to pay the Wife $1400 per month in child support.

The petition for dissolution of marriage was filed in October 2005. During the course of the proceedings, the Husband voluntarily paid $15,000 toward the Wife’s attorney’s fees. The Husband also contributed an additional $5000 for the Wife to hire a certified public accountant. The Wife’s attorney’s fees and costs incurred through the entry of the final judgment were approximately $83,000.

The case went to final hearing before Judge Daniel R. Monaco in October 2006. The trial court entered the final judgment of dissolution of marriage on November 15, 2006. An amended final judgment was entered on June 4, 2007. The Wife took an appeal from the final judgment, and this court affirmed. See DiNardo v. DiNardo, 989 So.2d 1190 (Fla. 2d DCA 2008) (table decision).

*1105 In the final judgment, the trial court reserved jurisdiction to consider the issue of attorney’s fees and costs. The parties promptly filed their fee motions, but the trial court did not hear the motions until January 2010, more than three years after the entry of the final judgment. In the interim, Judge Monaco had retired; a different judge heard the fee motions.

The Husband’s motion requested an award of attorney’s fees and costs based on his claim that he had “incurred a substantial amount of needless and unnecessary attorney’s fees, suit monies!,] and costs caused by [the] Wife’s bad faith litigation tactics and unnecessary delays.” The Wife based her claim on her need and on the Husband’s ability to pay.

The trial court conducted an evidentiary hearing on the parties’ respective fee motions. In a written order entered after the hearing, the trial court denied the Husband’s request for fees and costs. The trial court found that the Wife had caused some delays in resolving various matters, thereby increasing the amount of litigation necessary to resolve the matter. However, the trial court found the existence of extenuating circumstances that explained at least some of the delays. Ultimately, the trial court ruled that the circumstances did not rise to a level sufficient to warrant the assessment of fees and costs against the Wife based on her litigation conduct.

The trial court also denied the Wife’s motion for fees and costs because it found that the financial resources of the parties were “relatively equal.” The critical portion of the trial court’s ruling in the order under review concerning the financial resources of the parties is the treatment of the Husband’s bonus income. In support of its conclusion that the parties’ resources were “relatively equal,” the trial court made the following finding: “[T]he bonuses [sic] the [H]usband received prior to trial were put into [a] bank account that will be ultimately equally divided.”

II. THE PARTIES’ ARGUMENTS

On appeal, the Husband argues that the trial court abused its discretion in ruling that the Wife’s litigation conduct did not warrant requiring her to pay the Husband’s attorney’s fees and costs based on the Rosen factors. After a thorough review of the record, we conclude that the trial court did not abuse its discretion in declining to assess all or a portion of the Husband’s fees and costs against the Wife. The Husband’s argument on this point does not warrant further discussion.

The Wife observes that — in the order under review — the trial court misapprehended the income available to the Husband at the time of the entry of the final judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
82 So. 3d 1102, 2012 WL 385484, 2012 Fla. App. LEXIS 1551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dinardo-v-dinardo-fladistctapp-2012.