Full Opinion

Third District Court of Appeal State of Florida Opinion filed May 13, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-1273 Lower Tribunal No. 10-25061 ________________ Hadassa Helinski, Appellant, vs. Paul Brian Helinski, Appellee. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Monica Gordo, Judge. Shahady & Wurtenberger, P.A., and John J. Shahady (Fort Lauderdale); John M. Ross, P.A., and John M. Ross (Fort Lauderdale), for appellant. Paul Brian Helinski, in proper person. Before EMAS, C.J., and SCALES and MILLER, JJ. EMAS, C.J. INTRODUCTION Hadassa Helinski, the former wife, appeals a post-judgment order denying her motion for attorney’s fees and costs. The trial court denied the motion for attorney’s fees, concluding after an evidentiary hearing that credible evidence established that the former wife lacked the need and had the present ability to pay her attorney’s fees. Upon our review, and applying an abuse of discretion standard to this determination, we affirm that determination. However, we reverse that portion of the trial court’s order that denied costs to the former wife, as the former wife was entitled to an award of taxable costs pursuant to Florida Family Law Rule of Procedure 12.420(c) following the former husband’s filing of a notice of voluntary dismissal. FACTS AND PROCEDURAL BACKGROUND The former husband and former wife have four minor children together. The parties divorced and, in March of 2013, entered into a marital settlement agreement (“the Agreement”), which the trial court approved and incorporated into the final judgment. Two sections of that Agreement are relevant here: ATTORNEYS’ FEES: The Husband shall pay Twenty-Five Thousand Dollars ($25,000) in attorney’s fees to the attorney for the Wife, Richard Burton within thirty (30) days of the entry of the final judgment. Except for the payment provided for in the paragraph and the payments for attorney’s fees and costs previously paid by the Husband to the Wife’s attorney pursuant to court order, each of the parties agrees to pay his or her own attorneys’ fees and court costs in the negotiation and preparation of this Agreement and in any action for dissolution of marriage or similar action brought and in any future proceedings in any court. 2 ... DEFAULT: In the event either party of this Agreement defaults in his or her obligations hereunder, the party in default shall be liable to the non-defaulting party for all reasonable attorneys’ fees and court costs in the enforcement of obligations created by this Agreement. (Emphasis added). Four years later, the former husband sought to modify the final judgment, filing a petition (and later an amended and supplemental petition) for modification of parental responsibility and timesharing. The former husband sought sole parental responsibility and 100% of the timesharing. The former wife filed a response as well as a motion for temporary attorney’s fees and costs pursuant to section 61.16, Florida Statutes (2017). In October 2018—more than eighteen months after he filed his petition—the former husband filed a notice of voluntary dismissal, abandoning his petition to modify the final judgment and grant him sole parental responsibility and 100% of the timesharing. Following the former husband’s voluntary dismissal, the former wife filed a supplement to her motion for temporary attorney’s fees and costs under section 61.16, asserting that, in light of the voluntary dismissal, she was also now entitled to an award of costs pursuant to Florida Family Law Rule of Procedure 12.420(c). 3 Over the course of three separate days, the trial court held an evidentiary hearing on the former wife’s motion for attorney’s fees and costs. Counsel for the former wife testified that to date he had billed nearly $159,098.75 in attorney’s fees for services rendered and $27,528.28 for costs incurred. Counsel also testified that his client had an outstanding balance of $54,377.35. In addition to the testimony of the former wife’s attorney, the trial court heard testimony from the former wife, former husband, former wife’s forensic accountant and former wife’s fee expert. The former husband was pro se during the evidentiary hearing (and in this appeal). The trial court denied the former wife’s motion for attorney’s fees and costs, finding that 1) under the terms of the Agreement, the former wife waived any entitlement to attorney’s fees and costs; and 2) even if they were not waived, sufficient credible evidence was presented that the former wife lacked the need and had the ability to pay her attorney’s fees, and that the former husband lacked the ability to pay the former’s wife’s attorney’s fees. The former wife appeals the trial court’s order. STANDARD OF REVIEW AND ISSUES PRESENTED “The standard of review for an award of attorney's fees is abuse of discretion.” Jaffe v. Jaffe, 147 So. 3d 578, 581 (Fla. 3d DCA 2014). However, the trial court’s interpretation of the terms of a settlement agreement is a question of law we review de novo. Id.; Laux v. Laux, 266 So. 3d 217, 218 (Fla. 4th DCA 2019) (noting that 4 “because entitlement to attorney's fees in this case depends on the interpretation of a contract, the court's ruling is reviewed de novo.”) The former wife contends the trial court erred because, inter alia: 1) a party cannot waive its right to attorney’s fees and costs for proceedings relating to a child’s best interests; (2) the trial court failed to make any written findings on need and ability to pay; and (3) even if the trial court did not err in denying attorney’s fees, the former wife was entitled to an award of taxable costs pursuant to rule 12.420(c), following the former husband’s voluntary dismissal of his petition. ANALYSIS As noted above, the issue presented is whether the trial court erred in denying the former wife’s motion for attorney’s fees and costs. We begin our analysis with the language of section 61.16, Florida Statutes (2019), which provides: The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney's fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals. (Emphasis added). “The purpose of this section is to ensure that both parties will have a similar ability to obtain competent legal counsel.” Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997). The statute should be “liberally” construed “to allow consideration of any factor necessary to provide justice and ensure equity between the parties.” Id. 5 at 700. For instance, aside from need and ability to pay, the trial court may consider the “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. The Agreement’s Waiver Provision is Not Controlling Where the Issue Presented Requires the Trial Court to Determine the Best Interests of the Child The former husband contends that neither he nor the former wife was permitted to seek an award of attorneys’ fees and costs pursuant to section 61.16 because, by the express terms of their Agreement, “each of the parties agrees to pay his or her own attorneys’ fees and court costs in the negotiation and preparation of this Agreement and in any action for dissolution of marriage or similar action brought and in any future proceedings in any court.” (Emphasis added). The former wife counters that a party cannot contract away her prospective ability to “obtain an advocate” where the proceedings pertain to a child’s best interests (for example, parental responsibility, timesharing, child support), and that the trial court therefore erred in determining that, by the Agreement, the former wife waived any right to seek an award of attorney’s fees and costs. In support of this contention, the former wife relies upon the Fourth District’s decision in Bernstein v. Bernstein, 498 So. 2d 1270 (Fla. 4th DCA 1986). In 6 Bernstein, our sister court held that, in considering the best interests of the child, a trial court has the discretion to award temporary attorney’s fees, notwithstanding a provision in the marital settlement agreement waiving each party’s right to attorney’s fees: The rights of the minor child ordinarily have but one advocate, his or her custodial parent. If that advocate can be deprived by contract of the ability to retain competent counsel, then what the law says may not be done directly could be accomplished indirectly. Therefore, the rule that the parents cannot by contract adversely affect the child's rights must have a spillover effect on a contractual provision that would deny counsel to a party in need. On the other hand, the provision of the agreement in question for recovery of attorney's fees by the prevailing party has the salutary effect of eliminating harassment by reducing the number of frivolous matters being placed in litigation. It is therefore necessary to achieve a balance between these competing principles on a case-by-case basis, keeping in mind the rights of the minor children involved. Id. at 1274. Our sister court amplified upon this reasoning in Engelsen v. Landers, 699 So. 2d 1031 (Fla. 4th DCA 1997). In that case, unwed parties, in anticipation of their child’s birth, entered into an agreement for support of the child and waived any prospective right to attorneys’ fees and costs for subsequent proceedings involving the child. After the child’s birth, the parties separated and the mother filed a paternity action. By the time of the temporary relief hearing, the primary issues were custody, child support, and attorney’s fees and costs. The trial court granted the mother’s request for attorney’s fees and costs notwithstanding the parties’ prior 7 agreement to the contrary. Relying on its rationale in Bernstein, the Fourth District affirmed, explaining: In Bernstein, this court recognized that a contract dealing with child support ‘will be given effect only to the extent that it is in the best interests of the child.’ Bernstein was a case where the former wife sought an upward modification of child support from that awarded in a final judgment which incorporated the parties' settlement agreement. In the modification proceeding, the trial judge did not award attorney's fees to the former wife, finding that a provision in the settlement agreement absolutely precluded such an award. This court reversed, holding that the trial court had the discretion to award fees. ... The point of Bernstein is that if the parents cannot contract away a court's ability to act in the best interest of their child, then they cannot contract away one party's ability to obtain an advocate to see that the full story is developed in a child related proceeding. Id. at 1032 (internal citations omitted). Stated differently, where the issue in litigation requires the trial court to determine what is in the best interests of the child, the trial court has the discretion to award attorneys’ fees and costs pursuant to section 61.16, notwithstanding any agreement between the parties purporting to prospectively waive the right to seek an award of attorneys’ fees and costs. We agree with our sibling court and adopt the rationale of Bernstein and Engelsen. The instant case is self-evidently a “child-related case,” as the former husband sought sole parental responsibility and 100% timesharing with the parties’ four children. The former husband lodged serious accusations against the former 8 wife in ostensible support of his request to restrict or remove altogether the former wife’s timesharing with the children and her involvement in decision making regarding the children. We conclude that here—as in Bernstein and Engelsen—the waiver provision contained in the Agreement did not preclude the former wife from seeking (or the trial court, in its discretion, from awarding) attorney’s fees and costs pursuant to section 61.16 where the issues being litigated required the trial court to determine the best interests of the child. See Bernstein, 498 So. 2d at 1272 (holding: “The best interests of the children are paramount in proceedings dealing with custody and child support.”) See also Sanchez v. Sanchez, 647 So. 2d 1046 (Fla. 4th DCA 1994) (reversing order denying motion for attorney’s fees and holding that, in a post-judgment proceeding to modify custody and child support, trial court had discretion under Bernstein to award attorney’s fees notwithstanding parties’ settlement agreement providing that each party would bear their own attorney’s fees and costs in subsequent proceedings). The Trial Court Made a Separate Determination of Need and Ability to Pay Attorney’s Fees Although the trial court concluded that the terms of the parties’ Agreement foreclosed consideration of the former wife’s motion, the trial court did not conclude its consideration upon that finding. Instead, and having conducted a three-day evidentiary hearing on the former wife’s motion, the trial court determined that, even if the Agreement did not foreclose an award of attorney’s fees, the former wife’s 9 motion for attorney’s fees should still be denied. The trial court’s written order provided in pertinent part: Nonetheless, even if the contractual language [of the Agreement] does not govern, this Court finds after considering the credible evidence presented that the award of attorney’s fees should be denied pursuant to section 61.16 because the Former Wife lacks need and has a present ability to pay attorney’s fees. See Hoff v. Hoff, 100 So. 3d 1164 (Fla. 4th DCA 2012). So long as the cause is not deemed to be frivolous, this Court must consider the relative financial resources of the parties, including the financial need of the requesting party and the ability to pay of the other party. § 61.16, Fla. Stat. (2019); Ortiz v. Ortiz, 227 So. 3d 730, 732 (Fla. 3d DCA 2017). This Court heard extensive testimony over fifteen hours regarding need and ability to pay and finds that Former Wife does not have the need and Former Husband does not have the ability to pay. Moreover, this Court does not find that the litigation brought by Former Husband was frivolous or initiated with ill intent. In fact, this Court finds that much of the attorneys’ fees here were incurred unnecessarily. Upon our review of the record, and the remainder of the order on appeal, we hold that the trial court’s determinations are supported by competent substantial evidence, that the order is legally sufficient, and we affirm the trial court’s order denying the former wife’s motion for attorney’s fees. Compare with Miron v. Richardson, 278 So. 3d 738, 739 (Fla. 1st DCA 2019) (noting: “In the final order, the trial court made an express finding that Appellant's ‘financial condition is superior to the financial condition of’ Appellee. However, there is no language in the final order showing that the court first found Appellee's need for financial assistance to retain counsel and Appellant's ability to provide the needed payment”); Allen v. Juul, 278 So. 3d 783, 785 (Fla. 2d DCA 2019) (concluding that no factual 10 findings on need and ability to pay were present where the final judgment simply stated: “[Former Husband] is entitled to his reasonable attorneys' fees incurred as a result of [Former Wife's] claim for return of her cash deposits, to include his fees related to the 3 additional days of trial necessitated by [Former Wife's] claim . . . . [Former Wife's] Motion for Attorney's Fee is denied.”) Assessment of Costs Under Rule 12.420(c) is Mandatory Following a Voluntary Dismissal This does not end our analysis, however, because we must consider a separate basis advanced in support of the former wife’s request for costs. While it is true that the former wife’s initial motion sought an award of both costs and attorney’s fees under section 61.16, the former wife filed a supplemental motion seeking an award of costs on the additional ground that the former husband’s voluntary dismissal of his petition mandated an assessment of costs pursuant to Florida Family Law Rule of Procedure 12.420. We agree that this rule required the trial court to award taxable costs to the former wife following the former husband’s voluntary dismissal of his petition. Rule 12.420, entitled “Dismissal of Actions,” establishes the procedures to be followed for voluntary and involuntary dismissals of actions, and is similar (though not identical) to its civil counterpart, Florida Rule of Civil Procedure 1.420 11 (“Dismissal of Actions”). 1 What is identical in both rule 12.420 and rule 1.420 is that, upon a voluntary dismissal of the action, the trial court is mandated to assess costs. Rule 12.420(c) provides: Costs. Costs shall be assessed, except that the court may not require the payment of costs of a previously dismissed claim, which was based on or included the same claim against the same adverse party as the current action. (Emphasis added). For comparison purposes, rule 1.420(d) provides in pertinent part: Costs. Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action, once the action is concluded as to the party seeking taxation of costs. (Emphasis added). As can be seen, both provisions are couched in mandatory language. And as the Florida Supreme Court recognized in construing the civil counterpart: “Rule 1.420(d) is unambiguous—costs are to be assessed in the action that is the subject of the voluntary dismissal. . . .” Wilson v. Rose Printing Co., Inc., 624 So. 2d 257, 258 (Fla. 1993). 1 Prior to 2017, rule 12.420 provided that dismissal of actions and assessment of costs were generally governed by Florida Rule of Civil Procedure 1.420. In 2017, in In re Amendments to Florida Family Law Rules of Procedure, 214 So. 3d 400 (Fla. 2017), the Florida Supreme Court amended rule 12.420, creating a standalone rule and removing references to rule 1.420. 12 Had the former wife’s motion for costs been made solely in the context of a request for temporary fees and costs pursuant to section 61.16 (as her initial motion was), we might well have affirmed the trial court’s order denying costs. After all, given our adoption of Bernstein and Engelsen, as well as the trial court’s exercise of discretion under section 61.61, one could reasonably expect that our determination on the issue of costs would be consistent with our determination on the issue of fees. However, following the former husband’s voluntary dismissal, the former wife supplemented her request, with the additional ground that rule 12.420(c) mandates taxable costs be assessed against the former husband and awarded to her. We agree that the supplemental request for costs, filed following that voluntary dismissal, and the application of rule 12.420(c), controls the result here. We therefore affirm that portion of the trial court’s order denying the former wife’s motion for attorney’s fees. We reverse that portion of the order denying the former wife’s motion for costs, and remand for a hearing to assess taxable costs pursuant to rule 12.420(c) and for further proceedings consistent with this opinion. 2 Affirmed in part, reversed in part, and remanded with directions. 2 We find that the remaining issues raised by the former wife are without merit. 13