IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA

Transcription

1 IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT RECEIVED, 10/18/ :06 AM, Mary Cay Blanks, Third District Court of Appeal IN RE: THE MARRIAGE OF and Respondent I Appellant, NANCY CAVALLARO, Petitioner/ Appellee ~/ NOTICE OF APPEAL CASE NO: 10-DR-155-P - f\ ~ _,. c:r-. r 0 0 (~ ~-i c ~ ~ c,r- _ 0 <'i/-...1?j n oc. c.- _.. v ~-;;:. -:s...-lc, s:- ~-... :., f') NOTICE IS GIVEN that Respondent/Former Husband, appeals to the District Court ~ Appeal for the Third District of Florida, the Order rendered August 29, 20 16, a copy of which is attached hereto as Exhibit A. The nature of the order granting Petitioner's Motion for Rehearing is a fmal order resolving attorney fees from the original divorce proceeding. (Respondent's Motion for Rehearing denied on September 16, 2016, attached hereto as Exhibit B). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was furnished viae-filing portal to Michael J. Healy, Esq., Attorney for Petitioner, mhealy@silverlawgroup.com, service@silverlawgroup.com, treva@silverlawgroup.com, P.O. Box 710, Islamorada, FL 33036, on \o/1 '1/11, LAW OFFICES OF ALAN JAY BRA YERMAN Attorneys for Respondent/Former Husband 633 S.E. 3rd A venue, Suite 4R Fort Lauderdale, FL Tel: (954) , ext s rvice: courtservice@abravermanlaw.com By: ALAN JAY BRA YERMAN, ESQ. Fla. Bar No

2 IN THE CIRCUIT COURT OF THE 16 JUDICIAL CIRCUIT NANCY BROWN, Formerly NANCY CAVALLARO Petitioner/Former Wife, vs. Case No.: 10-DR-155-P Respondent/Former Husband ORDER ON PETITIONER'S MOTION FOR REHEARING THIS CAUSE came before the court upon the Petitioner's Motion for Rehearing of the Court's Order on Attorney's Fees and Costs filed with the Clerk of Court on July 28, The court, having reviewed the Motion, the Response, and being fully advised in the premises, finds and orders as follows: On July 13, 2016, this court entered an Order denying Petitioner's Motion for Attorneys' Fees and Costs. The court analyzed the Petitioner's claims under the need and ability standard of Florida Statute and the Inequitable Conduct doctrine. This Court did not explicitly address the Respondent's conduct when calculating fees and costs pursuant to Fla. Stat Therefore, the court will grant the motion for re-hearing to address this issue. While the financial resources of the parties are the primary factor to be considered under Fla. Stat , the statute "should be liberally-not restrictively-construed to allow consideration of any factor necessary to provide justice and ensure equity between the parties." Rosen v. Rosen, 696 So.2d 697, 700 {Fla. 1997). "Proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law." Jd. In this case, the court determined that the Respondent's conduct did not rise to the level of extreme Exhib~ 1 A

3 litigation misconduct necessary to support an award of fees and costs under the Inequitable Conduct doctrine. However, this does not preclude the court from awarding fees and costs under Fl. Stat for the Respondent's conduct in this matter. "[A] court may consider all the circumstances surrounding the suit in awarding fees under section " Id at 701. The court has repeatedly found that the Respondent's intentionally sloppy bookkeeping and comingling of personal assets with business expenses made it virtually impossible to determine his income, and made it much easier to dissipate marital assets. Mr. Burrel testified that this conduct directly increased the costs of the business valuation and accounting services rendered in this case. Unlike Petitioner's general assertion that the Respondent's bad faith conduct led to a need for attorney fees, here we have specific, tangible evidence of a nexus between the Respondent's conduct and increased accounting costs. Even with a link between the Respondent's conduct and increased costs, the court must still analyze any imposition of costs under the need and ability standard. "Where the party against whom an assessment is sought does not have the ability to pay, it is error to assess fees against that party, even though he or she may have engaged in meritless litigation." Hallac v. Hallac, 88 So.3d 253, 258 (Fla. 4th DCA 2012). However, courts have also noted that "[a] party's financial status should not insulate them from the consequences of their conduct within the judicial system." Mettler v. Mettler, 569 So.2d 496, 498 (Fla. 4th DCA 1990). first, the court will address Petitioner's need for payment of costs. Although Petitioner has previously received compensation, in considering a party's financial need for an award it is proper "to avoid an inequitable diminution of the fiscal sums granted the wife in these proceedings." Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla. 1980). Additionally, although this court previously denied Petitioner's general, blanket request for attorney fees, here, the 2

4 '. Petitioner can demonstrate a need for accounting costs because she paid for services that the record shows were greatly increased due to the conduct of the Respondent. With regards to ability to pay, the court previously found that the parties' financial situations were similar and declined to impose attorney fees. However, the court did not find that the Respondent lacked any ability to pay. In fact, there is evidence that Respondent received a substantial payout from a BP oil claim awarded to Lighthouse Boat Center, an asset awarded to the Respondent in the Amended Final Judgment. The court finds that the Respondent has the ability to pay costs in this matter. Upon reconsideration, the Petitioner is entitled to an equitable remedy under Fl. Stat reimbursing her for costs directly incurred by Respondent's conduct. Therefore, it is hereby ORDERED AND ADJUDGED that the Petitioner's Motion for Rehearing is GRANTED. Mr. Burrel testified that the total for accounting services rendered in this case was $39, He also testified that the normal range of accounting fees is between $8, $12, Subtracting a normal fee ($12,000.00) from the accounting costs in this case, the Court will grant Petitioner $27, costs for accounting services expenses incurred in the dissolution of marriage action. DONE AND ORDERED this ~day of August, 2016 at Plantation Key, Monroe County, Florida. - ) ~/ ~opiesto: The Silver Law Group, P.A. Attorneys for Petitioner Psilver@silverlawgrouo.com mhealy@silverlawqrouo.com linda@silverlawqrouo.com service@silverlawgroup.com Alan J. Braverman, Esq. Attorney for Respondent courtservlce@abravermanlaw.com ' ajb@abravermanlaw.com NFelder@abravermanlaw. com 3

5 .. IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT NANCY CAVALLARO, Petitioner/Former Wife, vs. Case No.: 10-DR-155-P Respondent/Former Husband ORDER ON PETITIONER'S MOTION FOR REHEARING THIS CAUSE came before the court upon the Respondent's Motion for Rehearing of the August 29, 2016 Order on Petitioner's Motion for Rehearing. Respondent's Motion for Rehearing was filed with the Clerk of Court on September 8, The court, having reviewed the Motion, the Response, and being fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the Respondent's Motion for Rehearing is DENIED. DONE AND ORDERED this f tf; day of September, 2016 Monroe County, Florida. Copies to: /LiJw Offices of Alan Jay Braverman Attorneys for Respondent courtservice@abravermanlaw.com / Sliver Law Group Attorneys for Petitioner mhealy@silverlawgroup.com servlce@sllverlawgroup.com Exhibit _B.