Kaiser v. Harrison

985 So. 2d 1226, 2008 WL 2774436
CourtDistrict Court of Appeal of Florida
DecidedJuly 18, 2008
Docket5D06-2826
StatusPublished
Cited by9 cases

This text of 985 So. 2d 1226 (Kaiser v. Harrison) 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
Kaiser v. Harrison, 985 So. 2d 1226, 2008 WL 2774436 (Fla. Ct. App. 2008).

Opinion

985 So.2d 1226 (2008)

Gregory A. KAISER, Appellant/Cross-Appellee,
v.
Tracey L. HARRISON, Appellee/Cross-Appellant.

No. 5D06-2826.

District Court of Appeal of Florida, Fifth District.

July 18, 2008.

*1227 Gregory A. Kaiser, Bradenton, pro se.

Thomas R. Townsend, Jr. of Thomas R. Townsend, P.A., Rockledge, for Appellee/Cross-Appellant.

ON MOTION FOR REHEARING

THOMPSON, E., Senior Judge.

Gregory Kaiser ("Kaiser") filed a motion seeking reconsideration and clarification of the opinion issued by this court on May 23, 2008. We deny the motion, withdraw our previous opinion, and substitute this corrected opinion in its stead.

Kaiser challenges the trial court's final judgment on his amended supplemental petition for modification of final judgment establishing paternity and the supplemental counterpetition for modification of child support filed by Tracey Harrison ("Harrison"). Kaiser appeals a $35,000 award of attorney's fees to Harrison and an order that he pay 57% of the child's private school expenses. Harrison cross appeals contending the trial court erred in not considering her expert witness's testimony to impute income to Kaiser for child support or her exhibit evidence that he used business income to pay his personal expenses. We affirm in part and reverse in part.

The trial court entered a final judgment of paternity on 13 April 1999. The original final judgment of paternity decreed shared parental responsibility, awarded Harrison primary residential custody along with $595.62 in non-retroactive monthly child support, and established that Kaiser would provide the majority of the transportation to facilitate visitation. Kaiser sought to amend the final judgment by filing a supplemental petition in 2001 and an amended supplemental petition for modification in *1228 2003. The trial court's ruling on Kaiser's amended supplemental petition and Harrison's counterpetition for modification of child support are the basis for this appeal.

After five days of hearings, the trial court entered a final judgment of modification. The trial court entered a detailed order granting Harrison sole parental responsibility, approving the child's continued attendance at Park Avenue Christian Academy, determining child support from the time of filing in September 2001 and for each ensuing year, awarding Harrison $1507.82 for child support arrears, ordering Kaiser to pay 57% of the child's private school expense, and awarding Harrison a contribution of $35,000 toward her attorney's fees and costs. At the conclusion of the hearing, Kaiser requested the court conduct an evidentiary hearing on attorney's fees if it was inclined to rule on the issue. The court responded that normally a party made this request at the beginning and ended the hearing without ruling on the request.

Both parties presented expert witnesses to testify about Kaiser's income and expenditures. Harrison's CPA, Lawley, was accepted as an expert in accounting and tax. Lawley testified that he reviewed Kaiser's records from 2000 through 2003. These records included corporate bank statements for his law practice and Kaiser Holding Corporation, personal accounts, miscellaneous documents, credit card statements, financial affidavits, receipts for some purchases, as well as individual and corporate tax returns. Lawley compared these records to his other attorney clients, two of whom had similar practices to Kaiser: an elder law practice and a criminal law practice. After evaluating several years of their gross income-to-compensation figures, he opined that 36% of Kaiser's gross income would be a reasonable percentage of his gross income to compensation. He theorized that Kaiser's drastic drop in compensation as a percentage of his practice's gross income for years after 2000 was due to either the payment of personal expenses by the business, underreporting of income, or both. Using the 36% figure applied to Kaiser's gross income records, he calculated Kaiser's personal gross income to be $135,000, $125,085, $172,530, $149,649, and $122,069, for the years 2000-2004, respectively. He also testified that his services to Harrison over the last few years, including his trial testimony, were billed at $8435. He currently billed $215 per hour, but his rate in 2003 was $195 per hour.

Kaiser's CPA expert, Rabb, was also accepted as an expert in tax and accounting. Rabb testified that the speculative nature of Lawley's cross-correlative approach to Kaiser's income was seriously flawed and did not produce reliable results. Rabb prepared Kaiser's tax returns based on information supplied to him; he did not utilize general ledgers. Thus, he had no opinion whether Kaiser's personal expenses were paid by the business.

Kaiser appeals the denial of a hearing to present evidence of settlement offers to dispute the reasonableness of the attorney's fee award. The parties filed their respective fee affidavits in open court. Despite the limited record to demonstrate the extent of the court's consideration of the fee affidavits, Kaiser cannot demonstrate that the court did not fully consider them. He requested for the first time, at the hearing's conclusion, that the court consider offers of settlement and other attempts to dispense with litigation in awarding attorney's fees; however, the issue of attorney's fees had already been raised and exhibits received days earlier.

The trial court has broad discretion to award attorney's fees and, on appeal, a reviewing court will reverse a fee award *1229 only if there has been an abuse of discretion. Schmitz v. Schmitz, 891 So.2d 1140 (Fla. 4th DCA 2005). The authority to award attorney's fees in this case derives from section 61.16, Florida Statutes (2005). See P.A.G. v. A.F., 602 So.2d 1259, 1260 (Fla.1992) (approving award of attorney's fees under section 61.16 when modification of child support brought in adjudicated paternity action). Section 61.16 gives a broad grant of discretion to award attorney's fees and costs, depending on the circumstances and after considering the financial resources of both parties. Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997).

Kaiser's motion for rehearing argued that the trial court failed to conduct an evidentiary hearing on attorney's fees to address offers of settlement, improperly considered the retained earnings of his business, and failed to consider his poor credit rating or request for pro se attorney's fees. He did not specifically dispute the reasonableness of Harrison's counsel's fees or hourly rate.

There is no requirement that the court conduct an evidentiary hearing for Kaiser to present evidence of offers of settlement. Although trial courts in marital dissolution proceedings have the authority under section 61.16 to deny fees for various forms of litigation misconduct, there is no authority for denying attorney's fees in dissolution cases solely for the failure to accept an offer of settlement. Levy v. Levy, 900 So.2d 737, 748 (Fla. 2d DCA 2005).

Attorney Townsend, Harrison's counsel, submitted a detailed affidavit showing 352.2 attorney and legal assistant hours for a total of $48,666.50, plus $4292.81 in total costs, for a grand total of $52,959.31. The court's order referenced fees and costs expended by various parties on Harrison's behalf of $62,619.31. These parties included attorneys Townsend, Gutin, Flajole, and CPA Lawley.

There is sufficient evidence of attorney Townsend's fees and costs for the trial court to make the requisite findings as to their reasonableness.

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Cite This Page — Counsel Stack

Bluebook (online)
985 So. 2d 1226, 2008 WL 2774436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaiser-v-harrison-fladistctapp-2008.