Perlow v. Berg-Perlow

816 So. 2d 210, 2002 WL 886399
CourtDistrict Court of Appeal of Florida
DecidedMay 8, 2002
Docket4D00-60, 4D00-978
StatusPublished
Cited by7 cases

This text of 816 So. 2d 210 (Perlow v. Berg-Perlow) 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
Perlow v. Berg-Perlow, 816 So. 2d 210, 2002 WL 886399 (Fla. Ct. App. 2002).

Opinion

816 So.2d 210 (2002)

Esig PERLOW, Appellant,
v.
Sharon H. BERG-PERLOW; Michel Berg, individually and as Trustee; Louis Berg and Minnette Berg, individually, jointly and severally, Appellees.

Nos. 4D00-60, 4D00-978.

District Court of Appeal of Florida, Fourth District.

May 8, 2002.

*211 Edna L. Caruso of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellant.

Joel M. Weissman of Joel M. Weissman, P.A., and Doreen M. Yaffa, P.A., West Palm Beach, for Appellee-Sharon H. Berg-Perlow.

*212 ON MOTION FOR REHEARING

PER CURIAM.

We deny the appellant's motion for rehearing. We withdraw the opinion issued on December 12, 2001, and substitute the following opinion.

Esig Perlow, former husband, appeals from a non-final order that denied his motion for temporary attorney's fees in the dissolution of his marriage to appellee Sharon Berg-Perlow. This court relinquished jurisdiction to the trial court to permit the trial to proceed and for the entry of a final judgment in the dissolution proceeding. Appellant's appeal from that judgment has been consolidated with the non-final appeal.

The parties were married in 1986, and their only child was born in 1991. The parties resided at one time in California, where appellant was an attorney. In 1998, appellee commenced divorce proceedings. Appellant's first lawyer filed a financial affidavit on his behalf, showing income for 1996 to be $177,000. The affidavit says that for 1997, the year preceding the petition, appellant's income was, upon information and belief, only slightly less.

Initially, appellee sought primary residential custody of the parties' child, with shared parental responsibility and liberal visitation to appellant. However, the child's behavior deteriorated markedly during the dissolution. He became verbally abusive and physically violent, both with appellee and at school. Appellee, on several occasions, sought and received increasingly restrictive contact between the child and appellant. The record contains evidence that appellant actively and repeatedly undermined the child's psychological treatment, including making threats to the child's psychologist.

Before the final hearing, appellant was represented by three different attorneys. The last attorney filed a motion for temporary fees and costs on appellant's behalf, but sought and received the court's permission to withdraw from representation before the motion was heard. Appellant proceeded, pro se, thereafter. On December 19, 1999, more than two months before the final hearing, the trial court conducted a hearing on appellant's motion for temporary attorney's fees. His third attorney, who had withdrawn from representation, appeared and testified at that hearing as to the amount of attorney's fees that he estimated would be required to represent appellant in the dissolution proceeding. Appellant gave sworn testimony that he did not have the money to pay a lawyer. He also testified that $123,000 of the $177,000 income that he had shown on his financial affidavit for the year 1996 was in dispute. He claimed that he had filed an amended financial affidavit, but the trial court could not find the amended affidavit in the court file and appellee's counsel denied receiving a copy of it. Appellant also testified that he had no income during 1997, 1998, 1999, that he had a heart condition, and that he went through bankruptcy. However, appellant failed to present an attorney to testify that he or she would be willing to represent him and as to the amount of attorney's fees that would be needed to represent him.

The trial court found that appellant failed to show an obligation to pay attorney's fees, or to show that the absence of an anticipatory award prevented him from obtaining counsel, and, therefore, he had failed to show need. The trial court also explained that it did not have sufficient evidence to determine the amount of an award because there was no evidence as to the hourly rate that would be charged by the attorney who would represent the husband. The trial court provided in its order that "the husband's request for temporary attorney's fees is denied. This is without *213 prejudice to the husband to seek temporary attorney's fees after retaining counsel should he do so."

On February 22, 2000, the case proceeded to trial. On the opening day of trial, appellant made a motion for continuance, which the trial court denied. He then absented himself from the proceedings without leave of court, and appellee began presentation of her case in his absence. After the lunch recess, appellant re-appeared and made a motion for temporary attorney's fees. Although he made argument to the court, he presented no evidence and the court denied his motion for attorney's fees. The trial court explained:

THE COURT: The only way I know of basically doing attorney's fees is you have to get someone to come in here, an attorney to come in and say they have agreed to take the case on the basis— and we have a hearing. There is no procedure whereby I order them to give you money to run out and hire an attorney.
MR. PERLOW: Well, Your Honor, I wasn't proposing they give me the money. I was proposing a certain amount be allocated—
THE COURT: I can't allocate unless an attorney comes in and says I am going to charge $200 an hour and I need this much for this and that and this and that, and that you don't have the ability to pay and you have the need and then we proceed from there.

The court informed appellant that if he "came in tomorrow with an attorney," it would hear his motion for attorney's fees. The next day, appellant appeared with an attorney. The trial court recessed the trial proceedings and informed the attorney that

I want just to basically indicate the court's position here, that is that Mr. Perlow has indicated that he does not have sufficient funds to retain an attorney to represent him in this proceeding and I told him that he would have to get an attorney to come on board to say they would be willing to handle the case for him. We have already begun the trial and he has absented himself. He has been in and out, actually. I indicated to him that a cursory observation of the financial affidavits that it appeared somewhat likely that I am going to reserve jurisdiction for fees, that he might be entitled to fees and costs when the case was over with. That's essentially all I can tell you at this point. It's a question of whether you want to come on board with that—with knowing that or not. I can't delay the trial or continue it at this point.

After being informed that the attorney had only had approximately two hours to discuss the case with appellant, the trial court offered to recess the case until the next day to permit the attorney to make a decision as to whether she intended to enter the case. The attorney responded that

If this is an instance where the only funding of the litigation is going to occur after the entry of a final judgment on a reservation of fees, after a finding of entitlement, after a finding of need on the part of the husband, a finding of ability to pay on the part of the wife, subject to appellate review, with the potential for a motion to stay; that even if the Court were to make all those findings in favor of Mr. Perlow, that is not a case that I would undertake, nor do I know of any other practitioner in Palm Beach County who would come on board under those circumstances, when it has been represented to me that this is a case of not less than 15 days trial duration.

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Related

Perlow v. Berg-Perlow
943 So. 2d 878 (District Court of Appeal of Florida, 2006)
Bryan v. Bryan
930 So. 2d 693 (District Court of Appeal of Florida, 2006)
K.A.S. v. R.E.T.
914 So. 2d 1056 (District Court of Appeal of Florida, 2005)
Plichta v. Plichta
899 So. 2d 1283 (District Court of Appeal of Florida, 2005)
Perlow v. Berg-Perlow
875 So. 2d 383 (Supreme Court of Florida, 2004)
Ross v. Botha
867 So. 2d 567 (District Court of Appeal of Florida, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
816 So. 2d 210, 2002 WL 886399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perlow-v-berg-perlow-fladistctapp-2002.