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Docket Number

No. 2D05-3889.

Attorney(S)

Denise E. Elder of Gerald R. Sage, P.A., Tampa, for Appellant. Ellen E. Ware and Jeanie E. Hanna of Ellen E. Ware, P.A., Tampa, for Appellee.

Judges

Chris W. Altenbernd

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Smart Summary

Kasm v. Kasm, No. 2D05-3889 (Fla. 2d DCA May 19, 2006) — Summary of Opinion

Factual and Procedural Background

This appeal arises from a nonfinal order of the Circuit Court, Hillsborough County (Anthony K. Black, J.), granting temporary attorney's fees to Patricia Kasm (the Wife). Walter J. Kasm, Jr. (the Husband) appealed the order. The district court affirmed, without discussion, the trial court's conclusion that the Wife was entitled to temporary attorney's fees, but reversed the portion of the order that awarded a specific sum ($10,000) because the trial court made no findings regarding the reasonableness of that amount and the appellate record did not disclose how the trial court reached the figure. The case was remanded for further proceedings to determine a reasonable fee amount.

The concurring opinion (Altenbernd, J.) includes additional factual information from the record appendix: the dissolution involves a nine-year marriage, no children, low current incomes, the Wife's living expenses exceed $2,500 per month and she has no income, limited assets, the Husband claims nonmarital assets in excess of $400,000, and the Wife has made a disputed claim for alimony. These details appear in the concurrence and are part of the opinion's record-based discussion.

Legal Issues Presented

Whether the trial court must make findings as to the reasonableness of temporary attorney's fees when awarding a specific amount.
Whether the record supports the trial court's award of a specific amount ($10,000) in temporary attorney's fees where the trial court did not explain how it arrived at that figure.

Arguments of the Parties

Appellant's (Husband's) Arguments

The trial court was required to determine whether the proposed temporary attorney's fees were reasonable and failed to do so.
Because the trial court made no findings explaining how the $10,000 award was calculated or why it was reasonable, the award of that specific amount should be reversed or remanded for further findings.

Appellee's (Wife's) Position as Presented Below

The Wife's counsel briefly described the difficulty litigating the case up to the time of the temporary fee hearing, but did not specify a precise fee amount that counsel considered reasonable or present evidence establishing a particular reasonable total.
The Wife's attorney submitted an affidavit setting forth hours and amounts expended to date and estimating additional hours and expenses to be incurred; however, the affidavit could be read to support a wide range of possible awards and did not clearly identify which amounts (expended or projected) the court should adopt as reasonable.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Nault v. Nault, 883 So.2d 894 (Fla. 2d DCA 2004)	Describes that trial courts enjoy "broad" discretion in making temporary fee determinations.	The opinion references Nault in explaining judicial discretion over temporary fee awards and notes that, despite that discretion, the court must still ensure reasonableness findings where required.
Walker v. Walker, 827 So.2d 363 (Fla. 2d DCA 2002)	Cited (via Nault) in support of the statement that trial courts have broad discretion in temporary fee determinations.	Used as supporting authority (through Nault) for the general proposition of broad discretion in temporary fee awards.
Wrona v. Wrona, 592 So.2d 694 (Fla. 2d DCA 1991)	Cited (via Nault) in support of the statement that trial courts have broad discretion in temporary fee determinations.	Used as supporting authority (through Nault) for the general proposition of broad discretion in temporary fee awards.
Safford v. Safford, 656 So.2d 485 (Fla. 2d DCA 1994)	States that the trial court must determine need, ability to pay, and that the temporary attorney's fees and costs awarded are reasonable (quotes Duncan).	The court relied on Safford to reiterate the requirement that the trial court must make a reasonableness determination for temporary fee awards; because the trial court did not do so here, the award of a specific amount was reversed and remanded.
Duncan v. Duncan, 642 So.2d 1167 (Fla. 4th DCA 1994)	Quoted in Safford for the proposition that temporary award determinations must include a reasonableness inquiry.	Indirectly cited (via Safford) to support the rule requiring reasonableness findings for temporary fee awards.
Nichols v. Nichols, 519 So.2d 620 (Fla. 1988)	Explains that the process for determining attorneys' fees is the same for both temporary and final awards and requires an inquiry into whether one spouse has a need and the other the ability to pay.	The concurrence notes that the trial court's order properly explained Nichols and that the order included necessary findings except for findings on reasonable hourly rate and reasonable number of hours expected.
Driscoll v. Driscoll, 915 So.2d 771 (Fla. 2d DCA 2005)	Cited for the notion that trial judges have the "very broadest discretion" in considering temporary awards.	The concurrence cites Driscoll to emphasize the broad discretion afforded trial courts in temporary fee awards and to support the view that a $10,000 temporary award does not, on its face, constitute an abuse of discretion.
Robbie v. Robbie, 591 So.2d 1006 (Fla. 4th DCA 1991) (Polen, J., concurring in part and dissenting in part)	Referenced in the concurrence for the proposition that trial courts should not be required to make detailed findings of fact on temporary attorneys' fee awards.	The concurrence uses this authority to argue that temporary fee awards need not be subjected to the same exacting evidentiary or detailed-findings process as final awards.
Wallace v. Wallace, 605 So.2d 504 (Fla. 4th DCA 1992) (Polen, J., concurring)	Referenced in the concurrence to support the position that trial courts need not make detailed findings for temporary fee awards.	The concurrence cites Wallace to argue for more relaxed procedures for setting temporary fee awards, subject to eventual reconciliation in the final judgment if necessary.

Court's Reasoning and Analysis

The district court separated two distinct determinations made by the trial court: (1) the determination that the Wife was entitled to temporary attorney's fees, and (2) the determination of a specific monetary amount ($10,000) as a temporary fee award. The court affirmed, without discussion, the first determination—that the Wife was entitled to temporary fees. With respect to the second determination, the court analyzed the record and found that the trial court had made no findings explaining how it concluded that $10,000 was a reasonable fee.

The appellate court examined the evidentiary record available (including the Wife's counsel's brief remarks at the temporary fee hearing and an affidavit from the Wife's attorney). The court noted that counsel only briefly referred to the difficulty of litigating the case but did not specify a reasonable fee amount or present evidence establishing a particular reasonable total. The attorney's affidavit outlined amounts expended to date and estimated additional hours and expenses, but the affidavit could be read to support a wide range of awards and did not clearly identify which amounts the trial court relied upon.

The court relied on controlling authority requiring that a trial court must not only find need and ability to pay, but must also determine that the temporary attorney's fees awarded are reasonable (citing Safford, which quotes Duncan). Because the trial court provided no explanation for the $10,000 figure and the appellate record did not reveal how that figure was derived, the court concluded it could not determine whether the award was reasonable. Therefore, the court reversed the portion of the order awarding the specific amount and remanded for the trial court to determine the reasonable amount of temporary fees.

The opinion acknowledges the trial court's broad discretion in temporary fee determinations (citing Nault and authorities cited therein) and the concurring judge emphasized that, on the record before the court, the $10,000 award did not appear to be an abuse of discretion. Nonetheless, the majority felt compelled to require the trial court to make findings or otherwise provide a basis for the specific amount awarded so that an appellate court can review the reasonableness of the award.

Holding and Implications

Affirmed in part, reversed in part, and remanded.

Holding: The district court affirmed the trial court's determination that the Wife was entitled to temporary attorney's fees but reversed the portion of the order awarding a specific amount ($10,000) because the trial court failed to make findings regarding the reasonableness of that amount.

Implications: The direct consequence is that the case is remanded to the trial court to determine and/or explain the reasonable amount of temporary attorney's fees to be awarded. The opinion emphasizes that even where trial courts possess broad discretion over temporary fee awards, they must make sufficient findings or provide a record basis for the specific amount awarded so an appellate court can review the reasonableness of the award. The opinion itself does not announce any new rule beyond applying existing precedent requiring reasonableness findings for temporary fee awards.

Disposition

The judgment of the district court: Affirmed in part (entitlement to temporary fees), reversed in part (specific $10,000 award), and remanded for further proceedings to determine a reasonable fee amount. KELLY, J., concurred; ALTENBERND, J., concurred (opinion attached).

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Walter J. KASM, Jr., Appellant, v. Patricia KASM, Appellee.

SALCINES, Judge.

Walter J. Kasm, Jr. (the Husband), appeals from a nonfinal order granting temporary attorney's fees to Patricia Kasm (the Wife). We affirm, without discussion, the portion of the order which concluded that the Wife is entitled to temporary fees. However, the trial court made no findings whatsoever concerning the reasonableness of the temporary fees awarded, and this court cannot determine from the record before us how the trial court arrived at its determination of the amount awarded. Accordingly, we reverse the portion of the order awarding $10,000 in temporary fees and remand to the trial court for a determination of the reasonable amount of fees to be awarded.

We confess some discomfort in reversing that portion of the order because the amount awarded was not unusually excessive. Furthermore, the trial court enjoys "broad" discretion in making temporary fee determinations which, by their very nature, can be adjusted at a later date by an additional interim award or, in certain circumstances, a credit. See Nault v. Nault, 883 So.2d 894 (Fla. 2d DCA 2004) (citing Walker v. Walker, 827 So.2d 363 (Fla. 2d DCA 2002), and Wrona v. Wrona, 592 So.2d 694 (Fla. 2d DCA 1991)). Nonetheless, in this case we are compelled to reach this result. See Safford v. Safford, 656 So.2d 485, 486 (Fla. 2d DCA 1994).

In this appeal, the Husband argues that the trial court was required to determine whether the proposed fees were reasonable but that it failed to do so. Although the Wife's counsel briefly alluded to the difficulty experienced in litigating the case up to the date of the temporary fee hearing, counsel did not otherwise address a specific fee amount which she considered reasonable and did not offer any evidence concerning a reasonable fee amount. The Wife's attorney presented an affidavit which set forth amounts expended through the date of the affidavit as well as an estimate of additional hours to be expended and expenses to be incurred, but the affidavit itself could be read to support an award ranging from far less to far more than the amount actually awarded. Indeed, it is not entirely clear which fees and expenses, expended or projected, were appropriate in this case. The trial court awarded $10,000 without explanation.

"The trial court must `not only determine that one spouse has a need for suit money and the other has the ability to pay, but also that the temporary attorney's fees and costs awarded are reasonable.'" Safford v. Safford, 656 So.2d 485, 486 (Fla. 2d DCA 1994) (quoting Duncan v. Duncan, 642 So.2d 1167 (Fla. 4th DCA 1994)). In the present case, the trial court did not explain how it determined that $10,000 was a reasonable fee, and we cannot determine how it reached that conclusion based on the record before this court. Accordingly, we reverse that portion of the order awarding a specific amount of temporary fees and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

KELLY, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge, Concurring.

I concur in this case only because existing precedent seems to require this result. Especially considering the "very broadest discretion" trial judges are afforded when considering temporary awards, see, e.g., Driscoll v. Driscoll, 915 So.2d 771, 772 (Fla. 2d DCA 2005), I would conclude that it appears obvious from our record that a $10,000 temporary attorneys' fee award is not an abuse of discretion.

This matter comes to us as an appeal of a nonfinal order that determines the right to immediate monetary relief in a family law matter. See Fla.R.App.P. 9.130(a)(3)(C)(iii). We have an appendix that includes only a portion of the record. This dissolution proceeding involves a nine-year marriage, apparently between parties who have been previously married. There are no children of this marriage, and the current income of the parties disclosed in the financial affidavits is quite low. The wife has living expenses in excess of $2500 per month and no income. She discloses limited assets. The husband agrees that there are few assets of the marriage but claims nonmarital assets in excess of $400,000. The wife has made a disputed but reasonable claim for alimony. It is obvious that the wife will not be able to afford representation without a temporary award.

The award is supported by an affidavit from the wife's attorneys, disclosing their hourly rates and expected expenses, which certainly do not appear unreasonable. The affidavit, however, does not detail a method to support the $10,000 award in this case.

The trial court's order properly explains that under the holding in Nichols v. Nichols, 519 So.2d 620 (Fla. 1988), the process for determining attorneys' fees is the same for both temporary and final awards. That process requires an inquiry into whether one spouse has a need and the other has the ability to pay. Id. at 622. The order in this case appears to have all of the necessary findings, except for a finding on the reasonable hourly rate and the reasonable number of hours the wife's attorney expects to expend.

It seems to me that the process of setting a temporary award of attorneys' fees in a divorce proceeding should not be subjected to the same rigors as a final award. See, e.g., Robbie v. Robbie, 591 So.2d 1006, 1010-11 (Fla. 4th DCA 1991) (Polen, J., concurring in part and dissenting in part) (trial courts should not be required to make detailed findings of fact on temporary attorneys' fees awards); Wallace v. Wallace, 605 So.2d 504, 505 (Fla. 4th DCA 1992) (Polen, J., concurring). At least in a case in which there will be a final award of alimony or a property distribution that could be adjusted in the event that the trial court ultimately decides that the temporary award of fees was excessive, I believe that temporary attorneys' fees should not be treated like a final determination of a monetary award. Unless a trial court expressly states that the award is final and will not be reconsidered in the final judgment, such temporary awards should be treated as only a temporary decision and reviewable in this court only by writ of certiorari.

KASM v. KASM