NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JENNIFER C. MYRICK, )
)
Appellant, )
)
v. ) Case No. 2D15-3181
)
)
DENNIS M. MYRICK, )
)
)
Appellee. )
)
Opinion filed March 24, 2017.
Appeal from the Circuit Court for
Hillsborough County; Tracy Sheehan,
Judge.
Elizabeth S. Wheeler of Berg & Wheeler,
P.A., Brandon, for Appellant.
Virginia R. Vetter, Tampa, for Appellee.
CRENSHAW, Judge.
The former wife appeals the trial court's order denying her request for
attorney fees and costs and requiring her to pay the former husband's attorney fees and
costs incurred in this post-dissolution modification proceeding. We affirm the denial of
the former wife's fees and costs without further comment. Because the trial court erred
in ordering the former wife to pay nearly all of the former husband's attorney fees in this
matter apparently as a sanction for the former wife's litigation conduct, we reverse.
The parties' marriage was dissolved by a final judgment entered in 2012
which incorporated the parties' Marital Settlement Agreement (MSA). Under the MSA,
the parties agreed to have shared parental responsibility with respect to their minor
child. They also agreed to a parenting plan and timesharing schedule wherein the
former wife would have the majority timesharing with the child. The MSA provided that
"[i]n the event that the Husband shall relocate his residence to within a ten (10) mile
radius of the Wife's current residence, the parties agree to revisit the Parenting Plan and
Timesharing Schedule with the minor child taking into consideration the Husband's
proximity to the child."
In January 2013, the former husband relocated to within a ten mile radius
of the former wife's residence and tried to revisit the timesharing agreement with the
former wife. When the former wife apparently refused to amicably revisit the issue, the
former husband obtained counsel who then filed a petition for modification in February
2013, seeking primary residential responsibility of the child, or, alternatively, joint
rotating timesharing as well as a corresponding change to his child support obligation.
Over the course of the proceedings, the former husband obtained new counsel and
expanded his requests for relief. In response to the former husband's evolving
requests, the former wife eventually suggested a 50/50 timesharing arrangement in
October 2013. Nevertheless, the litigation continued and in his Second Amended
Supplemental Petition for Modification filed in June 2014, the former husband sought
sole parental responsibility and a majority of the timesharing. The case proceeded to a
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final hearing on the former husband's latest modification petition in July and September
of 2014, after which the trial court awarded the former husband 100% of the overnights
with the child and ultimate parental responsibility regarding the child's educational and
mental health issues. The former wife's contact with the child was restricted to alternate
weekend days and Wednesday dinners after school.
Both parties then moved for attorney fees and costs. In his motion for
attorney fees and costs, the former husband alleged that he did not have sufficient
funds to pay his fees, that the former wife did have the ability to pay, and that she
"should be required to do so, especially because of the unreasonable position she took
in this case." The motion did not mention section 61.16, Florida Statutes (2014), Rosen
v. Rosen, 696 So. 2d 697 (Fla. 1997), or any other basis for the award. After a hearing,
the trial court denied the former wife's request for fees and costs and ordered the former
wife to pay all of the former husband's fees and costs, totaling $99,876.24. Although
the trial court did not explicitly state the basis for its award to the former husband, the
court's findings and the cases cited in its order suggest that it awarded the fees under
the inequitable conduct doctrine. See Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla.
1998). The trial court subsequently granted the former wife's motion for rehearing to the
extent that the court reduced the former husband's fee award by $3550—representing
the work of the former husband's first attorney—bringing the total amount to $96,326.24.
The former wife now argues that the fee award must be reversed because
the trial court failed to make sufficient findings to justify the award under the inequitable
conduct doctrine. Regardless of the lack of findings, she contends that her behavior in
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this litigation did not rise to the level warranting application of the inequitable conduct
doctrine. We agree.
"We review an award of attorney's fees . . . for abuse of discretion." Arena
v. Arena, 103 So. 3d 1044, 1045 (Fla. 2d DCA 2013). "Any determination regarding an
appropriate award of attorney's fees in proceedings for dissolution of marriage, support,
or child custody begins with section 61.16, Florida Statutes . . . ." Rosen, 696 So. 2d at
699.
Under this scheme, the financial resources of the parties are
the primary factor to be considered. However, other relevant
circumstances to be considered include factors such as 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.
Id. at 700. Distinct from this scheme, the trial court also has the inherent authority
under the inequitable conduct doctrine to award attorney fees as a sanction where one
party has exhibited egregious conduct or acted in bad faith. See Bitterman, 714 So. 2d
at 365; Rogers v. Wiggins, 198 So. 3d 1119 (Fla. 2d DCA 2016); Hahamovitch v.
Hahamovitch, 133 So. 3d 1020 (Fla. 4th DCA 2014). "Such awards are rarely
applicable and should be reserved for extreme cases in which a party litigates
vexatiously and in bad faith." Hallac v. Hallac, 88 So. 3d 253, 259 (Fla. 4th DCA 2012).
"When a court uses its inherent authority to assess attorney's fees, the court must make
an express finding of bad faith and include facts justifying the imposition of the award."
Hahamovitch, 133 So. 3d at 1025; see also Moakley v. Smallwood, 826 So. 2d 221, 227
(Fla. 2002) ("[A] finding of bad faith conduct must be predicated on a high degree of
specificity in the factual findings."). The trial court must also explicitly apportion the
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amount of the award that is directly related to the attorney fees and costs that the
opposing party incurred as a result of the additional work caused by the specific bad
faith conduct of the other party. Heiny v. Heiny, 113 So. 3d 897, 903 (Fla. 2d DCA
2013). Unlike the scheme under section 61.16, when proceeding under the inequitable
conduct doctrine the trial court does not need to make an express finding of need and
ability to pay. Becker v. Becker, 778 So. 2d 438, 439 (Fla. 1st DCA 2001).
Although the trial court did not explicitly state the basis for its award, it is
evident that the court awarded the fees under the inequitable conduct doctrine. For
instance, the trial court made no mention of section 61.16 in the portion of the order
awarding the former husband his fees and costs, nor did it make any findings regarding
need and ability to pay. The trial court also found several cases discussing the
inequitable conduct doctrine "instructive," including Mettler v. Mettler, 569 So. 2d 496
(Fla. 4th DCA 1990), and its progeny. Finally, many of the trial court's findings suggest
that it was proceeding under the inequitable conduct doctrine:
The Court specifically finds that this entire case, since it
began at the Former Husband's relocation on January 9,
2013, was made necessary by the Former Wife's conduct,
her actions, and her life choices. . . . [T]he Court specifically
finds a pattern of excessive, expensive, and needless
litigation. . . . [T]he Court finds that the Former Wife's
actions have been abusive of the judicial system, not of
taking up this Court's time, but to the two years of the
parties' respective lives and that of their young son.
Having identified the trial court's basis for the award, we conclude that the
trial court failed to make the specific findings to justify the award under the inequitable
conduct doctrine. Nowhere in the order did the trial court make a finding that the former
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wife acted in bad faith.1 On the contrary, the trial court found that it did not know why
the former wife litigated the case:
The Court does not know why [the former wife] has kept up
the litigation and can only suppose that it may be in some
manner related to the mental problems or perhaps it is just
an obstinate refusal to appreciate that she is not a good
person to parent the parties' child.
And with the exception of a finding relating to additional work caused by the former
wife's "apparent decision to remain un- or under-employed," the court failed to
adequately describe how any specific misconduct caused additional work. In essence,
the trial court determined that all2 of the former husband's second attorney's work in this
case constituted additional work caused by the former wife's "conduct, her actions, and
her life choices." The trial court's blanket finding simply lacks the "high degree of
specificity" required by Moakley. 826 So. 2d at 227.
Apart from the lack of findings, the fee award constitutes an abuse of
discretion because the former wife's conduct in this case does not rise to the level of
conduct that the inequitable conduct doctrine was intended to punish. See Rogers, 198
So. 3d at 1122 ("While the trial court viewed the mother's actions as selfish and contrary
1
Declining to "elevate form over substance," this court has explained that
the failure to recite the specific words "bad faith" is not per se reversible error where the
order "details the specific conduct at issue" and "clearly state[s] that [the sanctioned
party's] actions were 'improper and deliberate' and resulted in a miscarriage of justice."
Robinson v. Ward, 203 So. 3d 984, 990 (Fla. 2d DCA 2016). But unlike Robinson,
which involved an attorney's intentional and purposeful violations of the trial court's prior
rulings, here the trial court made no findings that the former wife intentionally and
purposefully violated its rulings, nor did the court detail the specific improper conduct
justifying the award.
2
Although the trial court found that the former wife's conduct caused all of
the work in this case, both the former husband and his second attorney suggested at
the fee hearing that the former wife was responsible for only "95[%] of everything that
was done in this case."
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to the best interests of the child, those findings in and of themselves do not support an
award of fees as a sanction under the inequitable conduct doctrine."). The trial court
found that "[i]f the Former Wife, when the Former Husband came back into town, had
agreed to a 50/50 time-sharing arrangement, an agreement would have been prepared
for about a thousand dollars and the matter would be over." But the former wife's
refusal to accede to the former husband's request for increased timesharing out of court
does not constitute bad faith or vexatious litigation and the former wife cannot be
ordered to pay the former husband's fees and costs simply because she refused to
settle the case. See Hallac, 88 So. 3d at 260–61 ("[T]he trial court abused its discretion
in awarding fees to the husband to be assessed against the wife, because the refusal to
settle the case in and of itself cannot be the basis for an award of attorney's fees
against the refusing party."). Moreover, the MSA only provided that the parties would
revisit the timesharing issue—it did not specify what new arrangement would be
considered. Indeed, the fact that the former husband's first petition for modification
requested more than just a 50/50 timesharing arrangement and the fact that the former
husband continued the litigation after the former wife agreed to a 50/50 arrangement
belie the contention that the former wife could have avoided the litigation entirely.
Accordingly, we affirm the denial of attorney fees and costs to the former
wife and reverse the award of attorney fees and costs to the former husband.
Affirmed in part and reversed in part.
KELLY and ROTHSTEIN-YOUAKIM, JJ., Concur.
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