Roberts v. Roberts

689 So. 2d 378, 1997 WL 78211
CourtDistrict Court of Appeal of Florida
DecidedFebruary 26, 1997
Docket95-3794, 96-0390
StatusPublished
Cited by10 cases

This text of 689 So. 2d 378 (Roberts v. Roberts) 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
Roberts v. Roberts, 689 So. 2d 378, 1997 WL 78211 (Fla. Ct. App. 1997).

Opinion

689 So.2d 378 (1997)

Gary ROBERTS, Appellant/Cross-Appellee,
v.
Ellen D. ROBERTS, Appellee/Cross-Appellant.

Nos. 95-3794, 96-0390.

District Court of Appeal of Florida, Fourth District.

February 26, 1997.
Rehearing Denied March 31, 1997.

*379 Richard A. Kupfer of Richard A. Kupfer, P.A., West Palm Beach, for appellant/cross-appellee.

Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, and Cathy L. Kamber of Renick, Singer & Kamber, Lake Worth, for appellee/cross-appellant.

FARMER, Judge.

We affirm the trial court's resolution of all issues on appeal except for the one we now discuss. It involves the wife's contention that certain work in progress in the husband's professional offices should be valued and considered for purposes of alimony and as part of an equitable distribution under section 61.075, Florida Statutes (1995). We partially reverse the trial judge's decision on that subject.

The husband is an attorney handling primarily personal injury cases on behalf of claimants. His fees are usually earned under contingency fee contracts, by which he is entitled to compensation only if his client recovers money. When there is a recovery, his fee is a percentage of the recovery.

The wife argues that unearned and unrealized fees on his cases in progress constitute income for purposes of alimony and marital property for purposes of equitable distribution. She offered expert testimony at trial regarding the value of his active but unresolved files, but the trial judge declined to consider or assign any value to those cases as such, stating:

"With regard to that work in progress, the Court finds that the evidence of value presented is speculative, dependent upon assumptions and projections not adequately supported by the evidence to the requisite degree of certainty that is required by the law. Accordingly, the value of the interests of the Husband in [his law practices] will be limited to [earned income] and the Court will assign no value to the work in progress."

On rehearing, the trial judge further explained:

"The Court has carefully considered the out-of-state case authority submitted by the Wife in support of her argument that the cases in progress in the Husband's ... law firm, to the extent that same have been `earned' during the marriage, ought to be valued and equitably distributed. However, the Court notes that there is no Florida case that has made such an award and determines that this is not a proper subject for equitable distribution."

Although this issue was one of first impression at trial, we now have Williams v. Williams, 683 So.2d 1119 (Fla. 3d DCA 1996), in which the court addresses this issue. In Williams, the trial court assigned a value to certain contingency fee cases that had *380 been settled but without the recovery having yet been effectuated and the fees thus actually earned. The trial court thereupon included the value of these settled cases in determining the overall value of the husband's interest in his firm. The third district affirmed that decision, quoting with approval the following from Quinn v. Quinn, 83 Md. App. 460, 575 A.2d 764 (1990):

"Generally, in valuing a professional partnership, the value of work in progress, along with other tangible factors, should be considered. This is so because at any time the amount of work actually done on the work in progress can be itemized and its value calculated.
"By contrast, a contingent fee cannot be recouped until the case is completed and either an award is made or a settlement is reached. Inasmuch as the amount of the fee, if one is ever realized, depends on the amount of the award or settlement, its ultimate value is, to say the least, highly speculative. Moreover, there is no guarantee that a settlement will ever be had or that an award will ever be made in any particular case. Consequently, the attorney may never receive a contingent fee. Even if such a fee is ultimately received, its value to the attorney is not ascertainable until he or she actually receives it." [c.o.]

575 A.2d at 769-70. Although Quinn had noted that a contingency fee case might be considered an asset of the law firm, it reversed because the trial court lacked a sufficient basis on which to value the pending cases. The trial court there had determined the value by multiplying the number of hours expended on each case by an hourly rate. Quinn concluded, however, that the hours worked on a contingency fee case may have little or no relationship to the ultimate award or settlement received.

The wife in Williams was seeking to place a value only on cases that had already settled, solving both concerns of Quinn. The settlements eliminated any contingency as to whether any fee would ever actually be due and payable. With the contingency gone, the only issue centered on the amount of the fee that would become due, an issue that could readily be ascertained from the amount of the settlement. 683 So.2d at 1121. We agree with Williams as to contingency fee cases that have been actually settled at the time of distribution.

There is a split of authority in other states as to whether pending contingency cases should be included in the distribution of the parties' property. The states holding that contingency fee cases should not be included as marital property (or community property) have typically done so for three reasons:

"(1) the attorney has neither the right to receive the contingent fee nor any assurance that he will ever receive it; (2) the ultimate value of the fee depends on the amount of the award or settlement in the case and is therefore highly speculative; and, (3) the worth of the fee to an attorney remains intangible until the firm actually receives cash or other consideration for the services rendered."

Musser v. Musser, 909 P.2d 37, 40 (Okla. 1995); see also In re the Marriage of Zells, 143 Ill.2d 251, 157 Ill.Dec. 480, 572 N.E.2d 944 (1991). Moreover, most of these states do not allow for the valuation of goodwill as a stick in the bundle of marital property. See Travis v. Travis, 795 P.2d 96 (Okla.1990); In re Marriage of Zells, supra.

The states recognizing pending contingency cases acknowledge that the fees are not "earned" until the contingency is realized, but reason that:

"[W]hile it is true that an attorney is not entitled to the full benefit of his contract until the contingency upon which it is based is fulfilled, this does not mean that valid enforceable contract rights do not exist regardless of its fulfillment. For example, an attorney under a contingency fee contract who is discharged prior to fulfillment of the contract is entitled to reimbursement for the reasonable value of his services....
"Therefore, considering the nature of a contingency fee contract (the performance of continuing services), it is not the existence of rights under that contract which *381 must abide a future event, but an assessment of the value of those rights."

Garrett v. Garrett, 140 Ariz. 564, 683 P.2d 1166 (1984).

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Cite This Page — Counsel Stack

Bluebook (online)
689 So. 2d 378, 1997 WL 78211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-roberts-fladistctapp-1997.