Goulding v. Goulding

368 So.3d 49

Nance Carol GOULDING, Appellant, v. Jason Ross GOULDING, Appellee.

No. 2D22-3862

District Court of Appeal of Florida, Second District.

July 26, 2023

Nance Carol Goulding, pro se.

Kathy C. George of Kathy C. George & Associates, Dunedin, for Appellee.

KHOUZAM, Judge.

Nance Carol Goulding, the Former Wife, timely appeals an order granting her Former Husband Jason Ross Goulding's motion for attorney's fees. We reverse because the order is legally deficient in several different respects.

BACKGROUND

I. The Underlying Proceedings and Prior Appeal

The parties divorced in 2009. In 2020, the Former Husband filed a modification petition and moved for contempt against the Former Wife, alleging she had failed to repay a loan. She also moved for contempt against him. Ultimately, the court (1) denied the Former Husband's modification petition, (2) granted the Former Husband's contempt motion, and (3) denied the Former Wife's contempt motion.

The Former Wife, pro se, appealed that order to this court, and the Former Husband cross-appealed. This court issued a per curiam opinion affirming without comment the portions of the order denying the Former Wife's motion for contempt and granting the Former Husband's motion for contempt. Goulding v. Goulding , 341 So. 3d 476 (Fla. 2d DCA 2022). We also dismissed the Former Wife's appeal as from a nonfinal, nonappealable order to the extent it challenged the portion of the order awarding fees and costs as a sanction for contempt because no amount had yet been set. Id. We affirmed the Former Husband's cross-appeal. Id.

This court remanded the Former Husband's appellate fees motion to the trial court, expressly ruling that the respective positions of the parties in that appeal was not a factor to consider. The order struck the Former Husband's request for costs.

On remand from this court, the Former Husband pursued his claims for attorney's fees for contempt and for fees incurred in the appeal. The September 20, 2022, hearing thereon was not transcribed.

The parties agree that the court ruled orally at the hearing and directed the Former Husband's counsel to draft a proposed order. After he submitted a ten-page proposed order via email, the court entered it largely verbatim, with few substantive revisions.

II. The Order Now on Appeal

The order awards the Former Husband attorney's fees in two categories: contempt of court and appellate fees from the prior appeal.

Fees for Contempt of Court

The order states that the court previously found entitlement to fees and costs for contempt, leaving open the issue of amount. It also states that the Former Wife "filed a Notice of Appeal on this issue of attorney's fees which was dismissed as being a non-final order."

With respect to ability to pay, the order states that the court can award attorney's fees in contempt proceedings regardless of ability to pay pursuant to "Florida Rules of Civil Procedure 12.615 (d)(2)." No such rule exists. It appears this was intended to be a reference to Florida Family Law Rule of Procedure 12.615(d)(2), which addresses sanctions for contempt of court. This legal assertion and citation are taken verbatim from the Former Husband's proposed order. The order does not address present ability to pay.

With respect to the amount, the order contains a miscalculation on its face. Whereas the order correctly multiplies one attorney's hourly rate by the hours asserted to have been expended, it incorrectly states that another attorney's $350 hourly rate at 0.8 hours yields $455. In fact, $350 multiplied by 0.8 is $280. The total amount awarded for contempt includes this inflated value. This portion of the order is also taken verbatim from the Former Husband's proposed order, which contains the identical mathematical error.

The court ordered payment due on the date the order issued.

Appellate Attorney's Fees for 2D21-3044

The order recounts that in prior trial court proceedings, (1) the Former Wife prevailed in obtaining a denial of the Former Husband's modification petition, (2) the Former Husband prevailed in obtaining a ruling of contempt against the Former Wife, and (3) the Former Husband prevailed in defeating the Former Wife's request for contempt against him. The court states that the Former Wife filed two motions for rehearing of the order reflecting these rulings, which were denied.

The order states that the Former Wife then appealed this order. It states: "Incongruously, the Former Wife appealed the issue she issue she [sic] won in the lower court," thereby requiring the Former Husband to expend legal fees to defend the appeal. The order states that the Former Wife's initial brief asked this court to affirm the denial of the Former Husband's petition in its entirety. It then states: "This statement by the Former Wife reopened the litigation on a matter that had been previously litigated, and upon which she had prevailed." It recounts that the Former Wife has since testified that bringing the appeal was a "mistake."

The order states that this court affirmed the contempt rulings but dismissed the Former Wife's challenge to amount as premature. This section of the order does not acknowledge the Former Husband's cross-appeal of his modification petition or this court's affirmance without comment thereof. The only mention of the Former Husband's cross-appeal is an unexplained finding several pages later that the Former Wife's "actions required the Former Husband to respond and do a cross appeal based on something that the Former Wife prevailed in the trial court." That statement was taken verbatim from the Former Husband's proposed order.

The order also states that in the prior appeal, "[t]he Former Wife proceeded to request the Appellate Court to issue a written opinion; her request was denied." However, this court's docket reflects that we issued a written opinion disposing of the prior appeal on the briefing; there was no reason for anyone to request a second opinion, nor is there any record of such a motion being filed. This incorrect finding also appears in the Former Husband's proposed order, using slightly different language.

The order finds that the Former Wife "acted in a vexatious manner" by seeking to hold the Former Husband in contempt, and further, that there was no legal basis for her prior appeal of the issue. The stated grounds for the ruling are that a prior judge had ruled against the Former Wife in orders that the later judge found "abundantly clear" and that the Former Wife never produced a court order ratifying the alleged oral agreement she claims the Former Husband violated. The order then recites the Rosen¹ factors, but it nowhere explains how they apply; it simply lists them and then says there was no valid basis for appeal.

The court recounted the Former Wife's financial documentation from 2019-2020. It found her 2020 financial affidavit "not credible." The order rejects her testimony of lack of ability to pay, saying "the Court found her reaction to be not credible and histrionic." It finds "based upon the records in evidence, the Former Wife has the ability to pay" in 2022 and orders her to pay in full by the same date the order was issued.

Nowhere does the order mention whether the Former Husband has a need for attorney's fees or otherwise address his finances.

The order states that the Former Wife testified she lives with "her paramour." This was one of the few findings that was not in the Former Husband's proposed order but was instead added by the court.

Like the contempt section of the order, this section contains a mathematical error on its face. It says 29.6 hours at $400 yields $11,820, whereas the correct value is $11,840. Once again, this language and mathematical error are taken verbatim from the Former Husband's proposed order.

Also taken verbatim is the finding that "the entire amount of fees sought by the Former Husband concerning the appeal were [sic] necessary by the appeal filed by the Former Wife." That includes at least one charge for services performed in January 2021—nearly nine months before the appeal was initiated on the last day of September 2021.

The order acknowledges that both the Former Husband's fees motion and his amended fees motion in the prior appeal incorrectly stated that he was impecunious. But it excuses this error, and awards attorney's fees for the time spent making it, on the basis that "[t]he District Court of Appeals [sic] was aware at all times of the Former Husbands' [sic] income when it issued the Order remaining [sic] to the trial court the Former Husbands' [sic] request for appellate attorneys' fees." Once again, this paragraph is also taken verbatim from the Former Husband's proposed order.

III. Rehearing

After the ruling, the Former Wife moved for rehearing of both the contempt and appellate fees awards. She raised several arguments, including pointing out the faulty arithmetic, identifying that the Former Husband lost his cross-appeal, challenging the finding of her ability to pay, challenging the Former Husband's need for fees, and challenging the entry of the proposed order nearly verbatim despite several errors on its face. She also identified that the court found that she lived with a "paramour" without any evidence or even suggestion that this was true.

The court denied rehearing in full. It did not suggest that the Former Wife had failed to raise any of these issues contemporaneously; instead, it said she was present at the hearing, was permitted to ask questions about the ruling, and "repeatedly voiced her disagreements with the Court's findings, and the Court patiently and repeatedly explained its findings." Apparently acknowledging that the order contains incorrect findings, the court nonetheless declined to grant any relief on the basis that "the facts with which she takes issue are not relevant to the Court's ultimate rulings." This appeal followed.

ANALYSIS

Family law litigation is often...