Smith v. Smith

902 So. 2d 859, 2005 WL 1047274
District Court of Appeal of Florida·Decided May 6, 2005·No. 1D03-5448·Published·Cited by 18 cases

Opinion

902 So.2d 859 (2005)

Sara SMITH, Appellant,
v.
Gregory D. SMITH, Appellee.

No. 1D03-5448.

District Court of Appeal of Florida, First District.

May 6, 2005.

Stephen S. Poché of Stephen S. Poché, P.A., Shalimar, for Appellant.

*860 Michael L. Guttmann, Pensacola, for Appellee.

ON MOTIONS FOR REHEARING, REHEARING EN BANC, AND CERTIFICATION

ERVIN, J.

Appellee, Gregory D. Smith, seeks rehearing, and rehearing en banc of the opinion previously issued in this cause on February 8, 2005. Appellee also moves for certification of questions generated by the issue raised in this appeal as questions of great public importance. We grant the motion for rehearing for purposes of revisiting our decision, in light of the adoption of Florida Family Law Rule 12.525, effective March 3, 2005. However, we deny the relief requested by appellee. Accordingly, we withdraw the opinion issued February 8, 2005, and substitute the following in lieu thereof.

Sara Smith appeals an order striking her motion for attorney's fees incurred in a dissolution of marriage proceeding against appellee by reason of appellant's failure to file her motion within 30 days after entry of the final judgment, as required by Florida Rule of Civil Procedure 1.525. Although the trial court recognized that the instant case was distinguishable from the line of cases holding that a provision in a final judgment reserving jurisdiction to determine entitlement to attorney's fees does not act as an automatic extension of time under Florida Rule of Civil Procedure 1.090(b) to file a motion for fees, it nonetheless granted the motion to strike due to appellant's noncompliance with the 30-day provision in rule 1.525. Because rule 1.525 is inapplicable in family law proceedings, see Amendments to the Florida Family Law Rules of Procedure (Rule 12.525), 897 So.2d 467 (Fla.2005), we vacate the order granting the motion to strike and remand the case for further proceedings.

In appellant's complaint for marital dissolution, filed in 2002, she sought, among other things, an award of attorney's fees. The parties ultimately settled all issues except spousal support and attorney's fees and costs for the benefit of the petitioner/wife. Ten days before the entry of the final judgment, the wife's attorney sent the husband's attorney a letter with a copy of his statement for services performed, and it concluded with the following inquiry: "Please advise if Mr. Smith is willing to pay this amount or if I will have to set a hearing on this issue."

The Final Judgment of Dissolution of Marriage was entered August 29, 2003. The decretal portion of the judgment provided:

9. The petitioner/Wife is entitled to a reasonable attorney's fee to be paid by the Respondent/Husband. The Court reserves jurisdiction to make a determination as to the amount of this fee in the event that the parties are unable to otherwise agree.

On September 11, 2003, the wife's attorney again wrote to the husband's attorney seeking a response to the wife's request for a stipulation as to the amount of attorney's fees sought by the wife. On September 19, 2003, the husband's attorney replied, offering "the sum of $6,000.00 in full and complete satisfaction of all amounts due to your firm. This sum would be paid at the rate of $500.00 per month, until satisfied." Finally, on October 10, 2003, or 42 days after entry of the final judgment, wife's attorney filed a motion for determination of attorney's fees and costs. Thereafter, the husband's attorney moved to strike the wife's motion for fees and costs as untimely.

At the hearing on the motion for determination of the amount of attorney's fees, the husband argued that rule 1.525 requires *861 that a motion for attorney's fees and costs be served no later than 30 days from the filing of the final judgment. The wife's counsel answered, stating that despite his efforts to negotiate the amount of the fee, he had heard nothing from the husband's attorney until September 19, 2003, and that upon receipt of the response, he set a hearing on the motion for attorney's fees. Specifically addressing the husband's motion to strike, counsel for the wife noted that upon his review of case law addressing rule 1.525, he was of the opinion it did not address the circumstances of a case, such as that at issue, in which the final judgment rendered by the court explicitly stated that wife's attorney was entitled to an attorney's fee, and jurisdiction was reserved only for a determination of its amount.

In granting the motion to strike, the trial court recognized that none of the case law which it had reviewed dealt with the issue of entitlement, but it concluded that even though it had decided the question of entitlement, a party seeking fees was still required by the rule to file a motion asking for the amount of the fee within 30 days from the filing of the final judgment. The subsequent written order granting the husband's motion to strike the motion for attorney's fees states in part:

From a review of the record before the Court, the Petitioner/Former Wife's Motion for Determination of Attorney's Fees and Costs was served more than thirty (30) days after the filing of the Final Judgment of Dissolution of Marriage in this matter. Thus, the same is untimely under the plain provisions of Rule 1.525, Florida Rules of Civil Procedure.
....
... Without a motion for enlargement of time being made, the Court may not and did not reach or consider the issue of excusable neglect further.

The standard of review regarding the trial court's construction of the rules is de novo. See Dep't of Transp. v. Southtrust Bank, 886 So.2d 393, 396 (Fla. 1st DCA 2004); Gosselin v. Gosselin, 869 So.2d 667, 668 (Fla. 4th DCA 2004); see also Jensen v. Jensen, 824 So.2d 315, 322 (Fla. 1st DCA 2002), review denied, 842 So.2d 844 (Fla.2003). This court's "standard of review as to the trial court's finding of excusable neglect is whether an abuse of discretion occurred." Southtrust, 886 So.2d at 396.

Rule 1.525, effective January 1, 2001, provides:

Rule 1.525. Motions for Costs and Attorneys' Fees
Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

When the trial court ruled on the issue in this case, rule 1.525 applied to dissolution of marriage proceedings pursuant to Florida Family Law Rule of Procedure 12.020, "which provides that the rules of civil procedure apply in all family law matters except as otherwise provided in the family law rules or when the family law rules conflict with the rules of civil procedure." Lyn v. Lyn, 884 So.2d 181, 183-84 (Fla. 2d DCA 2004). See also Mook v. Mook, 873 So.2d 363 (Fla. 2d DCA 2004); Gosselin, 869 So.2d at 668; Wentworth v. Johnson, 845 So.2d 296, 298 (Fla. 5th DCA 2003). In Wentworth, the court observed that a "request for fees and costs contained within a complaint or answer simply puts one's adversary on notice that a claim for fees and costs will be sought at the conclusion of the case." Wentworth, 845 So.2d at 298-99. The court concluded that in order *862 to comply with rule 1.525, a separate motion must be filed. See id. Accord Diaz v. Bowen, 832 So.2d 200, 201 (Fla. 2d DCA 2002)

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