C.F. v. S.B.

313 So.3d 873

C.F., Appellant,

v.S.B., Appellee.

Case No. 2D19-2865

District Court of Appeal of Florida, Second District.

Opinion filed February 12, 2021.

Mark A. Neumaier, Tampa, for Appellant.

J. Robert Angstadt of Angstadt Family Law Center, Tampa, for Appellee.

SILBERMAN, Judge.

C.F., the Mother, seeks review of an amended final judgment of paternity. She challenges the trial court's rulings awarding S.B., the Father, majority timesharing and denying her request for attorney's fees. We affirm the timesharing award without further discussion. However, we conclude that the court erred in denying the Mother attorney's fees on the stated basis that the Mother failed to present any evidence to support an award.

The Father filed a petition to establish paternity of C.F. in May 2017. He requested shared parental responsibility, majority or equal timesharing, and various forms of financial support. The Mother filed an answer and counterpetition in which she requested, among other things, majority timesharing and attorney's fees.

Prior to trial, the Father filed a motion to strike the Mother's request for attorney's fees on the basis that she did not provide complete financial disclosure. At the start of trial, counsel for the Father argued that he could not determine the Mother's income without more information regarding the source of a number of deposits into her bank account. Counsel for the Mother assured the court that she would fully explain her finances, and the court reserved ruling.

Both parties offered current financial affidavits and testified regarding their monthly income, expenses, assets, and liabilities. The Mother's financial affidavit reflected a gross monthly income of $3,484.03 and net income of $3,002.08. It also showed a monthly deficit of over $800. The Mother testified that she used her credit cards and overtime pay to make up the deficit. The Mother explained that numerous deposits into her bank account were loans or gifts from family, payments from the Father's stepdaughter's guardianship account, income tax refunds, and reimbursements from her daughter for college expenses. Her total assets were $18,150, and her net worth was negative $15,242.

The Mother also testified that she could not afford her attorney's fees. At this point in the proceedings, the Mother's counsel said to the court, "And I would request another hearing for that." The court responded, "I can decide entitlement, and then we can see, we can do that." Counsel responded, "All right."

The Father's financial affidavit reflected a gross monthly income of $8,936.76 and net income of $6,333.89. His gross monthly income was broken down between earned income of $5,249.51 and rental income of $3,790. He had a net monthly surplus of almost $600. The Father had total assets of $782,585.08 including substantial cash assets. His net worth was $512,534.78. At trial, the Father's financial affidavit was amended to include two additional mortgage-free rental properties omitted by error, with a combined net fair market value of about $150,000.

Despite the presentation of this evidence regarding the parties' relative financial positions, the trial court denied the Mother's request for attorney's fees, stating that "[n]o evidence was presented on the issue of attorney fees." The court denied rehearing as to the fee issue on the same basis. We reverse because the court's finding is not supported by the record.

"Any claim for attorney's fees requires a determination of at least two factors: the movant's entitlement to the award and, if there is entitlement, the reasonable amount of fees to be awarded." Rados v. Rados, 791 So. 2d 1130, 1132 (Fla. 2d DCA 2001). Section 742.045, Florida Statutes (2016), of the paternity statute provides for attorney's fees on the same basis as the provision for attorney's fees in dissolution of marriage cases, section 61.16(1), Fla. Stat. (2016). See Nishman v. Stein, 292 So. 3d 1277, 1281 (Fla. 2d DCA 2020).

The primary factor to be considered in determining entitlement under section 61.16(1) is the parties' financial resources. Allen v. Juul, 278 So. 3d 783, 784 (Fla. 2d DCA 2019) ; DiNardo v. DiNardo, 82 So. 3d 1102, 1106 (Fla. 2d DCA 2012). An entitlement determination requires consideration of both the parties' incomes and assets. DiNardo, 82 So. 3d at 1106. The court may also consider secondary factors related to the scope and history of the litigation and the parties' conduct. Allen, 278 So. 3d at 784 (citing Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997) ).

Once the court makes a determination of entitlement, it should consider the amount of reasonable fees to award. Perez v. Perez, 100 So. 3d 769, 771 (Fla. 2d DCA 2012) ; ...