Kasm v. Lynnel

975 So. 2d 560, 2008 WL 373618
CourtDistrict Court of Appeal of Florida
DecidedFebruary 13, 2008
Docket2D06-3643
StatusPublished
Cited by1 cases

This text of 975 So. 2d 560 (Kasm v. Lynnel) 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
Kasm v. Lynnel, 975 So. 2d 560, 2008 WL 373618 (Fla. Ct. App. 2008).

Opinion

975 So.2d 560 (2008)

Walter J. KASM, Jr., Appellant,
v.
Patricia LYNNEL, f/k/a Patricia Kasm, Appellee.

No. 2D06-3643.

District Court of Appeal of Florida, Second District.

February 13, 2008.

*561 Mark A. Neumaier, Tampa, for Appellant.

Jeanie E. Hanna of Ware Law Group, P.A., Tampa, for Appellee.

ALTENBERND, Judge.

Walter J. Kasm, Jr. (the Husband), appeals a circuit court order awarding temporary attorneys' fees in a dissolution of marriage proceeding. It is the second such nonfinal order that he has appealed. See Fla. R.App. P. 9.130(a)(3)(C)(iii). In Kasm v. Kasm, 933 So.2d 48, 49 n. 1 (Fla. 2d DCA 2006) (Kasm I), this court reluctantly reversed a prior circuit court order requiring the Husband to pay $10,000 of temporary attorneys' fees to the Wife in the pending dissolution action. With equal or perhaps greater reluctance, we reverse this order because it awarded "temporary" attorneys' fees for the first appeal after that appeal had been concluded and without any order from this court authorizing a "final" award of appellate attorneys' fees.

Although Florida Rule of Appellate Procedure 9.600(c)(1) provided the circuit court jurisdiction to consider "temporary attorneys' fees and costs reasonably necessary to prosecute or defend" the appeal, the trial court did not enter the order now on appeal until after the prior appeal was concluded. At that time, it was clear the Wife had not preserved her right to seek appellate fees for the completed appeal by filing a motion with this court for fees pursuant to rule 9.400(b). Although rule 9.600(c)(1) is undoubtedly an invaluable tool in a family law case to ensure that a needy spouse is not disadvantaged while litigation proceeds, this case highlights a procedural difficulty that can arise when a party seeks temporary attorneys' fees for an interlocutory appeal but the circuit court does not have adequate time to address the request during the relatively short duration of that appeal. Under those circumstances, the appellate practitioner *562 would be wise to not only seek temporary fees with the circuit court under rule 9.600(c)(1), but also to preserve the right to appellate fees incurred through the conclusion of the appeal by filing a motion with the appellate court pursuant to rule 9.400(b).

I.

In Kasm I, we reversed the circuit court's award of $10,000 in temporary attorneys' fees to the Wife, entered pursuant to section 61.16(1), Florida Statutes (2005). Those fees were requested based upon the fees the Wife expected to incur before the circuit court in the pending dissolution of marriage action. Although the evidence supported such an award, the court had not made the necessary findings on the amount of fees the Wife was reasonably expected to incur. Id. at 50. It is note-worthy that the order on appeal in this case is not an order in response to our mandate in Kasm I. From our limited record, it appears that the circuit court has not yet addressed the issues remaining on remand from the first appeal.

The order that the Husband now seeks this court to review is an award of additional temporary attorneys' fees to the Wife in the amount of $20,000. A comprehensive rendition of the tortured history by which this order was entered is unnecessary to resolve the issue now presented. Simply speaking, while the Husband's appeal of the first award of $10,000 in temporary attorneys' fees was pending, the Wife filed a new motion for temporary attorneys' fees with the circuit court. She sought both fees that she had incurred or expected to incur in the then-pending appeal, and additional fees that had been incurred or were expected to be incurred in the ongoing dissolution action. As authority for these awards, the Wife cited section 61.16(1) and rule 9.400(b). The Wife, however, never filed a motion for appellate attorneys' fees in the appellate proceeding pending in this court pursuant to rule 9.400(b). This is true, even though the Husband objected to the temporary appellate fees on that basis at a time when the Wife may have been able to remedy the problem.

By the time the Wife's motion was first heard in the circuit court, all of the briefs had been filed in Kasm I and the parties were awaiting a decision. Squabbles over procedure and other matters caused a hearing on temporary attorneys' fees to become three hearings. Before the last hearing was held, this court had already issued its opinion in Kasm I reversing the first award of attorneys' fees.

At each of the three hearings before the circuit court, the Husband's counsel objected to any award of temporary appellate attorneys' fees by the circuit court in the absence of the Wife's timely request for appellate attorneys' fees in this court pursuant to rule 9.400(b). The Wife countered that she was not required to seek temporary appellate attorneys' fees in the appellate court but could proceed solely in the circuit court under section 61.16(1). The circuit court ultimately agreed with the Wife's position.

The order now on appeal concludes that the Wife reasonably incurred $11,950 in appellate attorneys' fees in the first appeal and has incurred or reasonably expects to incur an additional $15,799.03 in temporary attorneys' fees and costs before the circuit court, for a total of $27,749.03. The court gave the Husband credit for $5,049.50, which was apparently the balance remaining from the $10,000 in fees originally ordered and paid by the Husband, although this calculation is not entirely clear from our record. The court then ordered the Husband to pay an additional $20,000 in temporary fees to meet the $22,699.53 that *563 the Wife continued to need. We reverse this order to the extent that it awards appellate attorneys' fees of $11,950. Because numerous fee issues remain to be resolved on remand, however, the trial court may revisit in its entirety the fees incurred to date and reasonably expected to be incurred in the future before the trial court, except for fees incurred in these appeals.

II.

Prior to October 1, 1994, any request for appellate attorneys' fees in a domestic relations case, whether for temporary fees to prosecute or defend the appeal or for "final" fees once the appeal was concluded, had to be directed to the appellate court. See Boyer v. Boyer, 588 So.2d 615 (Fla. 5th DCA 1991), overruled by statute as recognized in Swartz v. Swartz, 691 So.2d 2 (Fla. 3d DCA 1996). In 1994, however, the legislature amended section 61.16(1), to provide: "The trial court shall have continuing jurisdiction to make temporary attorney's fees and costs awards reasonably necessary to prosecute or defend an appeal on the same basis and criteria as though the matter were pending before it at the trial level." Ch. 94-169, § 1, at 1039, Laws of Fla.

In turn, the Florida Supreme Court amended rule 9.600(c) to provide: "In dissolution of marriage actions the lower tribunal shall retain jurisdiction to enter and enforce orders awarding . . . temporary attorneys' fees and costs reasonably necessary to prosecute or defend an appeal, or other awards necessary to protect the welfare and rights of any party pending appeal." Amendments to Florida Rules of Appellate Procedure 9.140 and 9.600, 657 So.2d 897, 898 (Fla.1995). The text of this rule has been modified slightly but remains substantively the same in rule 9.600(c)(1).

The rule and the statute both expressly refer to "temporary fees" that are "reasonably necessary to prosecute or defend" an appeal. § 61.16(1); Fla. R.App. P. 9.600(c)(1).

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Bluebook (online)
975 So. 2d 560, 2008 WL 373618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kasm-v-lynnel-fladistctapp-2008.