The $20,000 Question: Attorney s Fees in Family Law Cases

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1 FFL AIC PUPILAGE GROUP II PROGRAM Thursday, October 19, 2017 Welcome and Announcements Ned I. Price Invocation Kevin Raudt EVENING PRESENTATION The $20,000 Question: Attorney s Fees in Family Law Cases An Overview of the Rules of Professional Conduct Governing Attorney s Fees Ramona Chaplin and Andrew Morgan The Nuts and Bolts of Temporary and Final Attorney s Fees Chris Taylor and Denise Watson Practical Concerns of the Judges The Honorable Jack Schemer Circuit Judge, Fourth Judicial Circuit Evening Toast Sienna Sprinkle

2 AN OVERVIEW OF THE RULES OF PROFESSIONAL CONDUCT GOVERNING ATTORNEY S FEES Ramona Chaplin and Andrew Morgan 1. Rule 4-1.5(b) Factors to Be Considered in Determining Reasonable Fees and Costs: (A) the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (B) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (C) the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature; (D) the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained; (E) the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client; (F) the nature and length of the professional relationship with the client; (G) the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and (H) whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client's ability to pay rested to any significant degree on the outcome of the representation. 2. Rule 4-1.5(e) Duty to Communicate Basis or Rate of Fee or Costs to Client and Definitions: (1) When the lawyer has not regularly represented the client, the basis or rate of the fee and costs shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. A fee for legal services that is nonrefundable in any part shall be confirmed in writing and shall explain the intent of the parties as to the nature and amount of the nonrefundable fee. The test of reasonableness found in subdivision (b), above, applies to all fees for legal services without regard to their characterization by the parties. (2) Definitions. (A) Retainer. --A retainer is a sum of money paid to a lawyer to guarantee the lawyer's future availability. A retainer is not payment for past legal services and is not payment for future services. (B) Flat Fee. --A flat fee is a sum of money paid to a lawyer for all legal services to be provided in the representation. A flat fee may be termed "non-refundable." (C) Advance Fee. --An advanced fee is a sum of money paid to the lawyer against which the lawyer will bill the client as legal services are provided.

3 Reasonableness Time and labor required Fee customarily charged Experience and reputation of the lawyer's skill reflected Non-Refundable Fees All fees, Non-Refundable Fees and True Retainers must be reasonable and not clearly excessive. A fee for legal services that is nonrefundable in any part shall be confirmed in writing and shall explain the intent of the parties as to the nature and amount of the non-refundable fee. Non-Refundable Retainers True retainers Retain lawyers for future availability Not for services performed or to be performed Fees can t be excessive Prudent lawyer clearly overreaching or unconscionable Intentional misrepresentation or fraud 3. Rule 4-1.5(f) Contingent Fees: Shall be in writing and state method of determining fee Rule 4-1.5(f) (3) A lawyer shall not enter into an arrangement for, charge, or collect: (A) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof Closing statement must be in writing and signed by client and all lawyers 4. Trust Account: Earned Fees: Do not put in trust account Fla. Bar v. Barley, 831 So.2d 163 (Fla. 2002): The misuse of client funds held in trust is one of the most serious offenses a lawyer can commit and disbarment is presumed to be the appropriate punishment. 5. Arbitration Clauses: Fee agreement must contain notice as outlined in Rule 4-1.5(i) and advise potential client to obtain independent legal advice as to whether it is proper to enter into a contract with mandatory fee arbitration.

4 6. The Inside Scoop to Avoid Problems with Fee Disputes/Excessive Fees: Written contracts Define terms clearly Provide monthly billings Conduct closing settlement conferences Summarize work for the client Show free work conducted 7. Case Law: Lawyer who charged client $3,340 for looking up the names of out-of-state attorneys in a legal directory and drafting and mailing two form letters to fourteen attorneys, and who obtained no results for the client, was suspended for 91 days for charging a clearly excessive fee. The Fla. Bar v. Carlon, 820 So. 2d 891, 2002 Fla. LEXIS 830, 27 Fla. L. Weekly S 369 (Fla. 2002). Pursuant to former Fla. Bar Code of Professional Responsibility, Disciplinary Rule (now Fla. Bar Reg. R ), an attorney was suspended from the practice of law for 91 days for charging clients excessive fees; and it was not proper to bill clients for pro bono services rendered to others or to charge fees without regard to actual time spent. The Florida Bar v. Richardson, 574 So. 2d 60, 1990 Fla. LEXIS 551, 15 Fla. L. Weekly S 237 (Fla. 1990), cert. denied, 502 U.S. 811, 112 S. Ct. 57, 116 L. Ed. 2d 33, 1991 U.S. LEXIS 4679, 60 U.S.L.W (1991). Attorney's conduct in charging an excessive hourly and contingent fee, in violation of former Fla. Bar R (now Fla. Bar Reg. R ) and failing to advise client to obtain independent counsel, in violation of former Fla. Bar R (now Fla. Bar Reg. R ), resulted in a 60 day suspension. The Florida Bar v. Barley, 541 So. 2d 606, 1989 Fla. LEXIS 268, 14 Fla. L. Weekly 199 (Fla. 1989).

5 I. Statutory Authority TEMPORARY ATTORNEY S FEES IN FLORIDA Christopher M. Taylor A. Fla. Stat : In every proceeding for dissolution of the marriage, a party may claim alimony and suit money in the petition or by motion, and if the petition is well founded, the court shall allow a reasonable sum therefor , Fla. Stat. (2017). B. Fla. Stat (1): The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals (1), Fla. Stat. (2017). C. Fla. Stat : The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings. An application for attorney s fees, suit money, or costs, whether temporary or otherwise, shall not require corroborating expert testimony in order to support an award under this chapter , Fla. Stat. (2017). II. Requirements A. Hearing Required. Absent a stipulation by the parties, a hearing is required prior to an award of temporary attorney s fees. Giovanini v. Giovanini, 89 So. 3d 280 (Fla. 1st DCA 2012). This is a basic element of due process. Matlack v. Matlack, 893 So. 2d 656 (Fla. 4th DCA 2005). B. Need and Ability to Pay. When analyzing a request for temporary attorney s fees, the court will look at need versus ability to pay. Freid v. Freid, 717 So. 2d 145 (Fla. 5th DCA 1998). The standard for determining need and ability to pay is the same in both temporary and final attorney s fee awards. Nichols v. Nichols, 519 So. 2d 620, 622 (Fla. 1998). The purpose of temporary attorney s fees is to ensure that both parties to a dissolution case have similar access to counsel and that neither has an unfair ability to obtain legal assistance because of the other's financial advantage. Young v. Young, 898 So. 2d 1076, 1077 (Fla. 3d DCA 2005). C. Reasonableness. An award of temporary attorney s fees must be reasonable. Giovanini v. Giovanini, 89 So. 3d 280 (Fla. 1st DCA 2012); Routh v. Thompson, 82 So. 3d 157 (Fla. 2d DCA 2012). D. Evidence. Courts have broad discretion when ordering temporary attorney s fees, but the award must be supported by competent, substantial evidence. Ard v. Ard, 208 So. 3d 1288 (Fla. 1st DCA 2017). Arguments of counsel without evidence regarding need

6 and ability to pay are insufficient to support an award of temporary attorney s fees. Cherry v. Viker, 197 So. 3d 1292 (Fla. 1st DCA 2016). In contrast to final fee awards, findings supporting a temporary fee award are not required. Piluso v. Piluso, 622 So. 2d 117 (Fla. 4th DCA 1993). However, courts have held factual findings are required regarding reasonableness of the hourly rates and time expended. Chouri v. Chouri, 2 So. 3d 987, 988 (Fla. 2d DCA 2008). III. Differences Between Temporary and Final Attorney s Fee Awards A. Not Vested. Temporary attorney s fees are not vested rights, which may be modified or vacated. Baker v. Baker, 35 So. 3d 76, 77 (Fla. 2d DCA 2010). Payment of temporary attorney s fees may be credited to the payor when the parties income and assets are equalized in the final judgment. Derrevere v. Derrevere, 924 So. 2d 987, 988 (Fla. 4th DCA 2006). B. Findings Are Not Required. See Section II D Above. C. Temporary Attorney s Fees Cannot be Waived by Prenuptial and Ante-Nuptial Agreement. An agreement that limits the award of temporary attorney s fees and costs to a party in need violates public policy. Khan v. Khan, 79 So. 3d 99, 100 (Fla 4th DCA 2012) (citing Belcher v. Belcher, 271 So. 2d 7 (Fla. 1972)). D. Post-Final Judgment Enforcement of Temporary Fee Awards Barred. Unless jurisdiction is reserved by the court or the temporary fee award is incorporated into the final judgment, a temporary attorney s fee award cannot be enforced following the entry of the final judgment. Skinner v. Skinner, 579 So. 2d 358 (Fla. 4th DCA 1991); McFatter v. McFatter, 193 So. 3d 1100 (Fla. 1st DCA 2016).

7 FINAL ATTORNEY S FEES IN FLORIDA Katherine Johnson I. Plead to Preserve A. A claim for attorney s fees, whether based on statute or contact, must be specifically pled in the original action by either petition or motion. B. Failure to plead the basis for entitlement to fees precludes an award. Kunsman v. Wall, 125 So. 3d 868 (Fla. 4th DCA 2013). C. Be aware of the timing. In Longmeier v. Longmeier, 921 So. 2d 808 (Fla. 1st DCA 2006), the award of fees to the former wife were limited to those incurred after the date of her request for fees. The award could not include fees incurred for motions which were heard and ruled on before that date; the former wife had not previously requested fees relating to those motions. Once a party requests fees, the trial court has jurisdiction to award reasonable attorney s fees at the conclusion of the litigation, without the need to enter a separate fee order on each request. See Rorrer v. Orban, 215 So. 3d 148, (Fla. 3d DCA 2017) (rejecting husband s claim that the trial court lost jurisdiction to decide the wife s entitlement to attorney s fees in post-judgment proceedings, where no separate fee order was entered as to each of the post-judgment motions filed or defended by the wife). II. The Basis for the Claim A. Absent a stipulation, an award of attorney s fees in a dissolution proceeding must be determined at an evidentiary hearing. Soterakis v. Soterakis, 913 So. 2d 688 (Fla. 5th DCA 2005). B. Factors Determining Reasonable Fee. Considerations under Fla. R. Prof. Conduct 4-1.5(c) include: i. The time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly. See Rahman v. Rahman, 643 So. 2d 1200 (Fla. 5th DCA 1994) (fees excessive where issues were routine and only witnesses in case were husband and wife). ii. The likelihood that the acceptance of the particular employment will preclude other employment by the lawyer. iii. The fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature. iv. The significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained.

8 v. The time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or request of the attorney by the client. vi. The nature and length of the professional relationship with the client. vii. The experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency or effort reflected in the actual providing of such services. viii. Whether the fee is fixed or contingent, and, if fixed as to the amount or rate, then whether the client s ability to pay rested to any significant degree on the outcome of the representation. C. The financial resources of the parties are the primary factor to be considered when considering a fee award. Other relevant factors including the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation. Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997). D. If no evidence is introduced to support a claim for fees and costs, an award is improper. Braswell v. Braswell, 4 So. 3d 4 (Fla. 2d DCA 2009). E. Financial affidavits must be filed and served prior to a temporary and final attorney s fees and costs hearing. Fla. Fam. L.R.P F. Financial affidavits, as well as the attorney s fees and costs affidavits, must be entered into evidence at the hearing. It is not sufficient that the financial affidavits are filed in the court file. Lucero v. Lucero, 793 So. 2d 144 (Fla. 2d DCA 2001) (financial affidavits that were not introduced into evidence cannot support fee award). G. It may be an abuse of discretion to award fees where marital property is equitably distributed and the parties incomes equalized through an alimony award. Hutchinson v. Hutchinson, 185 So. 3d 528 (Fla. 1st DCA 2015). H. Argument alone does not allow the trial court to determine whether an award of fees was improper. Cherry v. Viker, 197 So. 3d 1292 (Fla. 1st DCA 2016). I. Corroborating expert witness testimony to support award of fees is not required under section See Moore v. Kelso-Moore, 152 So. 3d 681 (Fla. 4th DCA 2014). J. A party is not entitled to a second evidentiary hearing on issue of fees where she failed to put on any evidence to support the award at the first hearing. Simpson v. Simpson, 780 So. 2d 985 (Fla. 5th DCA 2001). K. An award of fees requires competent and substantial evidence. Brewer v. Solovsky, 945 So. 2d 610 (Fla. 4th DCA 2006).

9 L. Competent evidence includes invoices, records and other information detailing the services provided, as well as the testimony from the attorney in support of the fee. Faircloth v. Bliss, 917 So. 2d 1005 (Fla. 4th DCA 2006). III. Findings in the Judgment or Order Required A. Court s findings of fact must be sufficient to support appellate court review. Powers v. Powers, 193 So. 3d 1047 (Fla. 2d DCA 2016). B. Express findings as to hourly rate, number of hours, and appropriateness of reduction of enhancement factors is required. Campbell v. Campbell, 46 So. 3d 1221 (Fla. 4th DCA 2010). C. Merely reciting that the hourly rate and total time were reasonable is insufficient. Abbott v. Abbott, 187 So. 3d 326 (Fla. 1st DCA 2016).

10 ATTORNEY S FEES IN POST-JUDGMENT AND CONTEMPT PROCEEDINGS I. Post-Judgment Matters A. Statutory Basis Virginia Morgan (1), Fla. Stat., includes enforcement and modification proceedings. In those cases in which an action is brought for enforcement and the court finds the noncompliant party is without justification in the refusal to follow a court order, the court may not award attorney s fees, suit money, and costs to the noncompliant party (2), Fla. Stat. The court has jurisdiction to award costs and expenses as are equitable and reasonable attorney s fees (4)(c)(2), Fla. Stat. When a parent refuses to honor the time-sharing schedule without proper cause, the court...may order reasonable court costs and attorney s fees , Fla. Stat. The court may order a party to pay a reasonable amount for attorney s fees including enforcement and modification proceedings. B. Award of attorney s fee is enforceable by contempt. Fishman v. Fishman, 656 So. 2d 1250 (Fla. 1995). II. Sanctions Under , Fla. Stat. A. Statutory Basis. Section , Fla. Stat., allows for attorney s fees as sanctions for unsupported claims or defenses. B. Novel issue. Advancing a novel issue or defense is not subject to section , Fla. Stat. See B.W.P. v. A.L.H., 155 So. 3d 1229 (Fla. 2d DCA 2015). C. Domestic violence. No attorney s fees are available in domestic violence cases under Chapters 784 and 741. Under section , however, fees may be available in domestic/repeat violence injunctions. See Hall v. Lopez, 213 So. 3d 1003 (Fla. 1st DCA 2016). D. Department of Revenue. Attorney s fees may be available from the Department of Revenue under section See Lopez v. Dep t of Revenue, 201 So. 3d 119 (Fla. 3d DCA 2015).

11 III. Vexatious Litigation A. Relevant circumstances. Relevant circumstances include whether the litigation was brought primarily to harass, or where the defense was raised merely to frustrate or stall. See Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997). B. Express findings of bad conduct are required. See Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002). C. Extreme cases only. See Dybalski v. Dybalski, 108 So. 3d 736 (Fla. 5th DCA 2013). D. Award limited. The award is limited to the attorney s fees actually incurred as a result of the bad conduct. See Hahamovitch v. Hahamovitch, 133 So. 3d 1062 (Fla. 4th DCA 2014).

12 MOTIONS FOR REHEARING AND APPEAL OF FEE ORDERS I. Motions for Rehearing Rebecca Bowen Creed A. Authority. A new trial or rehearing may be granted to all or any of the parties and on all or a part of the issues. Fla. Fam. L.R.P (a). B. Timing. A motion for new trial or for rehearing must be served not later than 15 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action. Fla. Fam. L.R.P (b). C. When a motion for rehearing may be necessary. Generally, a party is not entitled to complain that a judgment in a marital and family law case fails to contain sufficient findings unless that party raised the omission before the trial court in a motion for rehearing. Simmons v. Simmons, 979 So. 2d 1063, 1064 (Fla. 1st DCA 2008); accord David v. David, 58 So. 3d 336, 338 (Fla. 5th DCA 2011). Absent a motion for rehearing challenging the insufficiency of the trial court s findings, the appellate court will have no choice but to affirm. See, e.g., Burkett v. Burkett, 155 So. 3d 478, 478 (Fla. 1st DCA 2015) (affirming fee award). D. Finality of fee order. An order on attorney s fees is not considered final and appealable unless the order determines both entitlement and amount. See, e.g., Mills v. Martinez, 909 So. 2d 340, 342 (Fla. 5th DCA 2005). E. Effect on notice of appeal. A timely, authorized motion for rehearing of a final order tolls the time for rendition. Fla. R. App. P (i)(1). Consequently, the notice of appeal may be filed thirty (30) days from the trial court s order denying rehearing. See Fla. R. App. P (i)(1); Fla. R. App. P (b). If a notice of appeal is filed while a motion for rehearing is pending, the trial court retains jurisdiction to rule on the motion for rehearing, and the notice of appeal is held in abeyance until disposition of the motion. Fla. R. App. P (i)(3). II. Appeal of Fee Order A. Jurisdiction of the trial court. The trial court retains jurisdiction to hear the issue and award attorney s fees even where one party may have already appealed the underlying dissolution judgment. See Bailey v. Bailey, 392 So. 2d 49, (Fla. 3d DCA 1981). When an order setting the fee amount is entered after the notice of appeal is filed, but prior to a determination of the main appeal, the notice of appeal from the final judgment of dissolution matures and vests the appellate court with jurisdiction to review the entitlement issue. Widom v. Widom, 679 So. 2d 74, 75 (Fla. 4th DCA 1996). B. Appeal of amount of attorney s fees awarded. If the trial court enters a separate order establishing the amount of attorney s fees awarded, a notice of appeal from that order must be filed to challenge the amount of the award. See Widom v. Widom, 679 So. 2d 74, 76 (Fla. 4th DCA 1996).

13 C. Time for appeal. The notice of appeal must be filed with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed. Fla. R. App. P (b). D. Consolidation of appeals. The appeal of the fee order may be consolidated with the appeal of the final dissolution judgment. E. Standard of review. The trial court s award of attorney s fees in a dissolution of marriage case is reviewed under the abuse of discretion standard. Ziruolo v. Ziruolo, 217 So. 3d 1170, 1172 (Fla. 1st DCA 2017).

14 APPELLATE ATTORNEY S FEES AND COSTS Rebecca Bowen Creed I. Temporary Appellate Attorney s Fees: Rule A. Authority 1. Fla. Stat (1): 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. 2. Fla. R. App. P (c)(1): In family law matters 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. B. Standard and Requirements 1. Purpose. The purpose of temporary appellate fees is to ensure that each spouse has the ability to secure competent legal counsel. See Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997). Given the equitable considerations underlying dissolution law in Florida, the trial court should mitigate the harm an impecunious spouse would suffer where the other spouse s financial advantage accords him or her an unfair ability to obtain legal assistance. Nichols v. Nichols, 519 So. 2d 620, 621 (Fla. 1988). The trial court may order the amount to be paid directly to the attorney, who may enforce the award (1), Fla. Stat. 2. Jurisdiction. A motion for temporary appellate fees under Rule 9.600(c)(1) must be heard by the trial court, which notwithstanding the pending appeal has continuing jurisdiction to award fees. See Fla. R. App. P (c)(1) & (2). 3. Timing. To preserve the client s right to seek temporary fees under Rule 9.600(c), the motion must be filed with the trial court and decided while the appeal is pending. See Kasm v. Lynnel, 975 So. 2d 560, (Fla. 2d DCA 2008). Once the appeal is no longer pending, neither the statute nor the rule gives any power to the circuit court to award temporary appellate attorneys fees. Id. 4. Need and ability to pay. In determining whether to make attorney s fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties, unless an appellate party s cause is deemed to be frivolous (1), Fla. Stat. The attorney s fee award should be based on the parties relative need and ability to pay when the necessity of incurring attorney s fees arises. See Mishoe v. Mishoe, 591 So. 2d 1100, 1101 (Fla. 1st DCA 1992); see also Duchesneau v. Duchesneau, 692 So. 2d 205, 207 (Fla. 5th DCA 1997) ( in

15 dissolution cases, an attorney s fee award is based on the current relative financial positions of the parties at the time of dissolution when they depart the marriage, not at some unspecified future date ). 5. Findings. The trial court s order awarding appellate attorney s fees should include specific findings as to the reasonable number of hours expended and the reasonable hourly rate. Coleman v. Bland, 152 So. 3d 752, 754 n.2 (Fla. 5th DCA 2014). C. Appellate Review of Temporary Appellate Attorney s Fee Order. Review of orders entered pursuant to Rule 9.600(c) shall be by motion filed in the [appellate] court within 30 days of rendition. Fla. R. App. P (c)(3). II. Appellate Attorney s Fees: Rule A. Authority 1. Fla. Stat (1): The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including... appeals. 2. Fla. R. App. P (b). [A] motion for attorneys fees shall state the grounds on which recovery is sought and shall be served not later than... the time for service of the reply brief. B. Requirements 1. Timing. A motion for appellate attorney s fees in a final or non-final appeal shall be served no later than... the time for service of the reply brief. Fla. R. App. P (b)(1). In original proceedings under Rule 9.100, the time for service of the petitioner s reply to the response to the petition. Fla. R. App. P (b)(2). 2. Interplay with Rule 9.600(c). Because temporary appellate attorney s fees can be awarded only while the appeal is pending, appellate practitioners should consider filing motions under both Rule and Rule at the outset of the appeal. As the Second District noted in Kasm, procedural difficulties 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. 975 So. 2d at 561. Under those circumstances, the Kasm court added, appellate practitioners 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). Id. at

16 3. File as a separate motion and include citations to specific legal authority. The motion for appellate attorney s fees must be filed as a separate motion that state[s] the grounds on which recovery is sought. Fla. R. App. P (b); see Garcia v. Collazo, 178 So. 3d 429, 430 (Fla. 3d DCA 2015). Do not simply cite to Rule 9.400(b). Instead, the motion must cite the specific contractual, statutory, or other substantive basis (like section of the Florida Statutes) for the right to fees. See Garcia, 178 So. 3d at Need and ability to pay. Florida law authorizes an award of attorney s fees on appeal after considering the financial resources of both parties (1), Fla. Stat. The financial resources of both parties are the primary factor to be considered. Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997). The award of fees may not depend on which party prevails. See, e.g., Rados v. Rados, 791 So. 2d 1130, 1134 (Fla. 2d DCA 2001). The motion may cite to the appellate record to argue the parties relative need and financial abilities. 5. Response. A party may serve a response to the motion within ten days of service of the fee motion. Fla. R. App. P (a). C. Conditional determination by the appellate court. The appellate court often provisionally grants a motion for final appellate fees, subject to the trial court s determination as to the amount of reasonable fees to be awarded and the parties relative need and ability to pay. See Davis v. Davis, 584 So. 2d 1117, (Fla. 1st DCA 1991); Dresser v. Dresser, 350 So. 2d 1152, 1155 (Fla. 1st DCA 1977); see also Rados v. Rados, 791 So. 2d 1130, (Fla. 2d DCA 2001) (explaining different types of appellate fee orders). D. Authorization from the appellate court is required. Absent an order from the appellate court, the trial court cannot award attorney s fees incurred on appeal. See, e.g., Kasm v. Lynnel, 975 So. 2d 560, (Fla. 2d DCA 2008). E. Enforcement of appellate court order. To enforce the conditional grant of appellate attorney s fees, file a motion to tax appellate attorney s fees (and, if applicable, costs) with the trial court. The assessment of attorney s fees may be decided by the trial court. See Fla. R. App. P (b). F. Timing of motion to tax appellate fees. Generally, in civil proceedings, a motion to tax attorney s fees must be served no later than 30 days after filing of the judgment. Fla. R. Civ. P However, Rule does not apply to family law proceedings. See Amendments to Fla. Fam. L.R.P., 897 So. 2d 467, (Fla. 2005); accord Rorrer v. Orban, 215 So. 3d 148, 154 (Fla. 3d DCA 2017). Additionally, Florida Rule of Appellate Procedure 9.400(b) does not specify the time for filing a motion to tax appellate attorney s fees with the trial court. See Computer Task Grp., Inc. v. Palm Beach Cnty., 809 So. 2d 10, (Fla. 4th DCA 2002); Philip J. Padovano, 2 Fla. Prac., Appellate Practice 22:6 (2016 ed.); cf. Fla. R. App. P (a) (specifying time for taxation of costs on appeal).

17 The motion to tax fees should be filed within a reasonable time after the appeal concludes. Cf. Rorrer, 215 So. 3d at 154 (noting that Rule does not apply to postdecretal orders in dissolution actions; so long as a party seeks fees within a reasonable time after the post-decretal work was performed, such motion will be timely filed ). G. Review of award of final appellate attorney s fees. Review of orders rendered by the lower tribunal under this rule [9.400] shall be by motion filed in the [appellate] court within 30 days of rendition. Fla. R. App. P (c). III. Award of Appellate Costs A. Fla. R. App. P (a): Costs shall be taxed in favor of the prevailing party unless the court orders otherwise. B. Taxable costs. Generally, taxable costs are limited to the costs specified in Rule 9.400(a). Those taxable costs include: (1) fees for filing and service of process; (2) charges for preparation of the record and any hearing or trial transcript necessary to determine the proceeding; (3) bond premiums; and (4) other costs permitted by law. The provision of the Rule allowing other costs permitted by law was enacted to allow for future flexibility, and to provide the legislature with an opportunity to expand the list of taxable costs in appellate proceedings. P. Padavono, Fla. Appellate Practice 22.3 (2013 ed.); Fla. R. App. P (a)(4) committee notes, 1977 Amendment. At present, the list of taxable costs does not include an appellate attorney s travel expenses. See In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So. 2d 612, 615 (Fla. 2005). C. Filing. A motion to tax appellate costs (unlike a motion for final appellate attorney s fees) should be filed with the trial court. See Fla. R. App. P (a); see also Garcia, 178 So. 3d at 430 (striking motion for appellate costs that was first filed in the appellate court, without prejudice to the filing of a timely motion with the trial court). Under section and Rule 9.600(c)(1), the trial court has continuing jurisdiction to grant temporary costs pending appeal. See 61.16(1), Fla. Stat.; see also Fla. R. App. P (c)(1) (authorizing trial court s jurisdiction to enter and enforce orders for temporary attorneys fees and costs reasonably necessary to prosecute or defend an appeal ). D. Timing. A motion to tax costs on appeal should be served no later than 45 days after rendition of the [appellate] court s order. Fla. R. App. P (a). In other words, unless a timely motion for rehearing (or other timely post-opinion motion) has been filed, you should file the motion to tax costs with the trial court within 45 days of the appellate court s opinion. However, if the appellate court has issued an order staying

18 the issuance of its mandate (or recalling its mandate), the trial court cannot take any action on costs at least not until the mandate issues or upon further order from the appellate court. Fla. R. App. P (a). Mandate typically issues within fifteen (15) days after the order or decision. If a timely motion for rehearing, clarification, certification, or issuance of a written opinion is filed, the time for issuance of the mandate is extended until fifteen (15) days after rendition of the order denying the motion (or, if granted, until fifteen (15) days after determination). Fla. R. App. P (a) & (b).