Third District Court of Appeal
State of Florida
Opinion filed January 3, 2024.
Not final until disposition of timely filed motion for rehearing.
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No. 3D23-0094
Lower Tribunal No. 20-5425
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Barbara M. Morales,
Appellant,
vs.
Julio C. Morales and Bofill Law Group,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, David Young,
Judge.
Nory Diaz, P.A., and Nory Diaz, for appellant.
Bofill Law Group, and Jose C. Bofill, for appellee, Bofill Law Group.
Before LOGUE, C.J., and LOBREE and BOKOR, JJ.
LOGUE, C.J.
Barbara M. Morales (“Wife”) is appealing a final order granting her
former counsel’s motion for enforcement of a charging lien. We are
constrained to affirm because the record brought by the Wife is inadequate
to demonstrate reversible error. We write, however, to explain why, as a
matter of law, it was within the trial court’s power to grant the Wife’s counsel
a charging lien in an amount exceeding the attorney’s fees and costs
previously awarded in the underlying divorce proceeding.
Following a final hearing on the dissolution of the marriage between
the Wife and Jose C. Morales (“Husband”), the general magistrate awarded
the Wife $32,818.18 in attorney’s fees and costs, to be paid by the Husband.1
The magistrate’s report noted that while the Wife’s counsel’s hourly rate was
reasonable given his experience, “there were hours billed that were
excessive, duplicative, billed as a result of block billing, and otherwise
clerical.”
The Wife’s counsel subsequently moved to enforce a charging lien.
After hearing the motion, the trial court issued an Interim Order on Attorney’s
Motion to Enforce Charging Lien. The Interim Order noted there was no
dispute that the Wife’s counsel was entitled to the attorney’s fees and costs
awarded by the magistrate and ordered disbursement of the funds. The trial
court found, however, that the remaining balance of attorney’s fees and costs
1
The Wife originally sought an award of attorney’s fees and costs of
$68,871.99.
2
was disputed and noted that the Wife objected to any award above the
amount awarded by the magistrate because the magistrate’s report found
such fees to be excessive and unreasonable.
The trial court thereafter conducted a two-day trial on the enforcement
of the charging lien, resulting in a final order granting the motion. 2 At trial, the
trial court heard testimony from the Wife’s counsel, his expert witness, and
the Wife’s son, but not the Wife herself. In its final order, the trial court found
that the Wife’s counsel was entitled to a charging lien in the amount of
$38,281.96. The trial court explained that its ruling was based on the expert’s
testimony, which it concluded was uncontradicted, the evidence showing the
results achieved by counsel, and counsel’s reasonable hourly rate, which it
found was far below what an attorney of his experience normally charged.
The Wife contends on appeal that the trial court erred as a matter of
law in granting the charging lien for additional attorney’s fees and costs in
excess of those awarded to her by the magistrate during the divorce
proceedings. 3 The Wife argues that the magistrate’s findings that these
additional attorney’s fees were excessive and unreasonable precluded the
2
The record does not contain transcripts of the trial.
3
A trial court’s grant of a charging lien is reviewed de novo. See Duhamel v.
Fluke, 295 So. 3d 880, 882 (Fla. 2d DCA 2020).
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trial court from granting a charging lien for these additional fees. The Wife’s
argument, however, confuses two distinct concepts.
“[T]he determination of attorneys' fees in a dissolution proceeding is
not a determination by the court of the amount due from a party to an
attorney[.]” Heller v. Kuvin, 490 So. 2d 245, 246 (Fla. 3d DCA 1986) (quoting
Knott v. Knott, 395 So. 2d 1196, 1198 (Fla. 3d DCA 1981)). Instead, “[t]he
court decides only the amount by which one spouse indemnifies the other
spouse.” Id.
An attorney’s right to recover against their client is a separate issue,
which can be pursued either via a charging lien or an independent action on
the contract with their client. Id.; see also Behar v. Root, 393 So. 2d 1169,
1170 (Fla. 3d DCA 1981); Barranco, Darlson, Daniel & Bluestein, P.A. v.
Winner, 386 So. 2d 1277, 1279 (Fla. 3d DCA 1980) (“Fees awarded against
a husband are fees of indemnification only, . . . and the award determines
only the obligation between a husband and wife. The action at law between
the wife and her attorney, although consolidated with the dissolution
proceeding for trial, presented questions relating to contract rights which
remained to be determined apart from the trial court's resolution of the
equities between the husband and wife.”).
4
Thus, the magistrate’s award of fees to the Wife to be paid by the
Husband determined only the obligation between the Wife and Husband as
it pertained to attorney’s fees and costs. It did not preclude the Wife’s counsel
from pursuing a charging lien against the Wife for the remaining attorney’s
fees and costs allegedly owed. The magistrate’s resolution of the equities
between the Wife and Husband had no bearing on counsel’s contractual
rights under the contract with his client, the Wife.
Having established it was within the trial court’s power to grant the
Wife’s counsel a charging lien in an amount exceeding the attorney’s fees
and costs the magistrate ordered the Husband to pay her, we are
constrained to affirm the trial court’s order because the record on appeal is
insufficient for us to determine the propriety of the charging lien amount as
we do not have transcripts of the trial proceedings. See Applegate v. Barnett
Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“Without knowing
the factual context, . . . an appellate court [cannot] reasonably conclude that
the trial judge so misconceived the law as to require reversal.”).
Furthermore, to the extent the Wife challenges the sufficiency of the
trial court’s findings in its order, she failed to file a motion for rehearing as
required by Florida Family Law Rule of Procedure 12.530 to preserve the
issue.
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Affirmed.
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