Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT NICOLE JEAN PALMATEER, ) ) Appellant, ) ) v. ) Case No. 2D19-4330 ) SCOTT DOMINIC PALMATEER, ) ) Appellee. ) ) Opinion filed March 10, 2021. Appeal from the Circuit Court for Collier County; Scott H. Cupp, Judge. Alexander C. Peterson and Jason Wentworth Fraser of Family First Legal Group, Naples, for Appellant. Toni A. Butler of Alderuccio & Butler, LLC, Naples; and Beverly Brennan of McLaughlin & Stern, LLC, Naples, for Appellee. SLEET, Judge. Nicole Palmateer (the Former Wife) challenges the trial court's order directing her, through counsel, to disgorge $9,000 in temporary appellate attorney fees paid by Scott Palmateer (the Former Husband). Because there is no legal basis upon which the trial court could require such disgorgement, we reverse. The trial court entered the final judgment of dissolution on December 7, 2017. The Former Husband then appealed that judgment, and the Former Wife cross- appealed.1 See Palmateer v. Palmateer, 260 So. 3d 476 (Fla. 2d DCA 2018). During the pendency of that appeal, the Former Wife filed in the trial court a motion for temporary appellate attorney fees pursuant to Florida Rule of Appellate Procedure 9.600(c), alleging that due to "the disparity in [the parties'] income[s] and [her] lack of liquidity," she had a need and the Former Husband had the ability to pay. See § 61.16, Fla. Stat. (2017). Her motion made it clear that she was seeking fees to pay her attorney to work on the appeal of the final judgment. The motion stated that "below signed counsel expects the number of hours involved in the instant appeal to be approximately 35 hours" and requested the specific amount of $10,325 "as an award for temporary appellate fees." The motion also cited section 61.16(1), which provides that "[t]he trial court shall have continuing jurisdiction to make temporary attorney's fees and costs awards reasonably necessary to prosecute or defend an appeal on the same basis and criteria as though the matter were pending before it at the trial level." On February 14, 2018, the trial court entered its order granting the Former Wife's motion and directing the Former Husband to pay $9,000 directly to the Former Wife's attorneys within thirty days. The order also stated that the trial court "reserve[d] jurisdiction to address [the] ultimate determination of fees for the Former Wife in this appeal." The Former Husband did not appeal this order either in the pending appeal of the final judgment of dissolution or by filing a new notice of appeal. 1The Former Wife later voluntarily dismissed her cross-appeal during the pendency of the appellate proceeding. -2- On October 4, 2018, the Former Wife filed a motion in this court for final appellate attorney fees pursuant to rule 9.400(b), noting that the trial court had awarded her $9,000 in temporary fees and that as of that date she had incurred a little more than $7,000 in fees on the appeal. The motion noted that the $9,000 in temporary fees already awarded may be sufficient to cover the total amount of appellate fees ultimately incurred but that she was filing the motion to preserve her right to request additional appellate attorney fees. However, the motion was filed beyond the time allowed to file the reply brief, and accordingly, this court struck the motion as untimely. See Fla. R. App. P. 9.400(b)(1) ("[A] motion for attorneys' fees . . . shall be served not later than: . . . in appeals, the time for service of the reply brief."). On December 5, 2018, this court issued its opinion in the appeal of the final judgment of dissolution, reversing the judgment "to the extent that the trial court adjudicate[d] and retain[ed] jurisdiction to enter and modify an income deduction order (IDO) in favor of the Former Wife against the Former Husband's municipal pension plan" and remanding for further proceedings. Palmateer, 260 So. 3d at 477. On February 21, 2019, the Former Husband filed in the trial court his Motion to Disgorge Award of Appellate Fees and Costs, seeking the return of the $9,000 in temporary appellate attorney fees he had paid the Former Wife's attorneys. The motion noted that the Former Wife's rule 9.400(b) motion filed in this court had been stricken as untimely, and his sole argument set forth for disgorgement was that "[s]tatutes construing attorney's fees are to be strictly construed" and "a motion for attorney's fees must be timely filed or it will be denied." At the hearing on the motion, counsel for the Former Husband argued that because the order awarding temporary appellate fees also reserved jurisdiction to -3- address the ultimate determination of fees in the appeal and because the Former Wife's rule 9.400(b) motion for appellate fees was untimely, "[t]here [was] no enforceable award of attorney's fees for the" Former Wife. Counsel maintained that because no fees were awarded by this court pursuant to the untimely rule 9.4000(b) motion, the $9,000 in temporary fees awarded by the trial court pursuant to section 61.16(1) and rule 9.600(c) had to be returned. The trial court inexplicably agreed with the Former Husband and, following the hearing, entered an order granting his motion and concluding that because "the Former Wife did not secure entitlement to Final Appellate Attorney's Fees" pursuant to rule 9.400(b), her counsel must return to the Former Husband the $9,000 in rule 9.600(c) temporary fees. This was error. Section 61.16(1) states as follows: 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. The trial court shall have continuing jurisdiction to make temporary attorney's fees and costs awards reasonably necessary to prosecute or defend an appeal on the same basis and criteria as though the matter were pending before it at the trial level. (Emphasis added.) Additionally, rule 9.600(c)(1) provides: The lower tribunal shall retain jurisdiction to enter and enforce orders awarding separate maintenance, child support, alimony, attorneys' fees and costs for services rendered in the lower tribunal, temporary attorneys' fees and costs reasonably necessary to prosecute or defend an appeal, or other awards necessary to protect the welfare and rights of any party pending appeal. (Emphasis added.) -4- As such, the trial court had jurisdiction in the instant case to award the $9,000 in temporary appellate attorney fees to the Former Wife. Furthermore, the Former Husband did not seek review of the temporary fee order pursuant to rule 9.600(c)(3), which provides that "[r]eview of orders entered pursuant to this subdivision shall be by motion filed in the court within 30 days of rendition." See also Kasm v. Lynnel, 975 So. 2d 560, 563 (Fla. 2d DCA 2008) ("Importantly, although the trial court has continuing jurisdiction to consider these claims pending appeal, the appellate court retains a supervisory role because it reviews any such order by motion filed in the pending appeal." (citing Fla. R. App. P. 9.600(c)(3))). The Rules of Appellate Procedure also provide that motions may be filed in the appellate court seeking attorney fees in appeals and in cases for which the district courts had original or discretionary jurisdiction. See Fla. R. App. P. 9.400(b). Rule 9.400(b) states that the motion shall include the grounds on which recovery is sought and sets forth the time limits for filing such a motion. The rule also allows the appellate court to remand the assessment to the trial court. Id. Pursuant to this rule, the Former Wife filed her motion for appellate attorney fees during the prior appeal, and pursuant to this rule, this court dismissed the motion as untimely because it was filed after the due date for the reply brief. See Fla. R. App. P. 9.400(b)(1). However, contrary to the Former Husband's arguments below and on appeal, once a trial court enters an order granting temporary appellate attorney fees pursuant to section 61.16 and rule 9.600, nothing in the plain language of that rule or statute—or in the plain language of rule 9.400—requires a litigant to take any further steps, including filing a rule 9.400(b) motion. Section 61.16(1) and rule 9.600(c)(1) specifically deal with orders awarding temporary appellate attorney fees that are -5- "reasonably necessary to prosecute or defend an appeal." As this court has noted, "[t]he award of temporary fees permitted by section 61.16(1) and rule 9.600(c) permits the circuit court a significant degree of latitude in setting an amount of temporary attorneys' fees in a dissolution to ensure that each spouse will have 'a similar ability to obtain competent legal counsel.' " Kasm, 975 So. 2d at 564 (quoting Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997)). This court also recognized that this process "allows the court to adequately protect the interests of a needy spouse during the litigation." Id. In other words, section 61.16(1) and rule 9.600(c) address those instances where the analysis of need and ability to pay reveal a spouse with a need so great that requiring him or her to wait to be reimbursed for appellate attorney fees at the end of the appellate process would foreclose his or her ability to obtain competent counsel at the beginning of the appeal or to retain that counsel throughout the appeal. Such is the situation here, where the Former Wife averred in her motion for temporary fees that, at the time, she lacked the liquidity necessary to defend the appeal and prosecute her cross-appeal. Furthermore, section 61.16(1) is jurisdictional and conveys certain authority on the circuit court, and nowhere does its language limit that jurisdiction by requiring any subsequent action in the appellate court. In turn, rule 9.600(c) recognizes the trial court's jurisdiction to award temporary appellate attorney fees and limits that authority only by subjecting the trial court's order to review upon a motion filed in the appeal within thirty days. Rule 9.400(b), on the other hand, deals with fees sought in the appellate court by motions addressed at the close of the appellate process, which if granted are remanded to the trial court for a determination of reasonable rate and hours expended -6- pursuant to Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). See Rados v. Rados, 791 So. 2d 1130, 1132 (Fla. 2001). Rules 9.600(c) and 9.400(b) are independent rules dealing with different concerns that may arise during the appellate process. Neither references the other, and there is no logical reason that we can see that would require a litigant who has been granted temporary attorney fees at the initiation or during the pendency of an appeal to have to pay those fees back if they fail to subsequently file a timely motion pursuant to rule 9.400(b).2 That the legislature intended for the trial court to have this authority is further evidenced by the legislative history of section 61.16: Prior to October 1, 1994, any request for appellate attorneys' fees in a domestic relations case, whether for temporary fees to prosecute or defend the appeal or for "final" fees once the appeal was concluded, had to be directed to the appellate court. In 1994, however, the legislature amended section 61.16(1), to provide: "The trial court shall have continuing jurisdiction to make temporary attorney's fees and costs awards reasonably necessary to prosecute or defend an appeal on the same basis and criteria as though the matter were pending before it at the trial level." Ch. 94-169, § 1, at 1039, Laws of Fla. In turn, the Florida Supreme Court amended rule 9.600(c) to provide: "In dissolution of marriage actions the lower tribunal shall retain jurisdiction to enter and enforce orders awarding . . . temporary attorneys' fees and costs reasonably necessary to prosecute or defend an appeal, or 2Both parties rely on a footnote in Kasm, 975 So. 2d at 565 n.1, as support for their respective arguments. However, that footnote specifically states that "[w]e need not address in this case whether a party who properly obtained temporary appellate attorneys' fees pursuant to rule 9.600(c) but did not thereafter secure entitlement to 'final' appellate fees by filing a motion with the appellate court pursuant to rule 9.400(b) might 'lose' the fees in the circuit court's final accounting for fees." Accordingly, Kasm provides no precedential value as to how to ultimately resolve the issue raised in the instant appeal and only offers a suggestion of best practices for appellate attorneys. See id. ("[A] practitioner seeking temporary appellate fees might be wise to avoid this issue by not only seeking the award by motion directed to the circuit court as permitted under rule 9.600(c) but also by securing entitlement to 'final' appellate fees by filing a motion with the appellate court pursuant to rule 9.400(b)."). -7- other awards necessary to protect the welfare and rights of any party pending appeal." Kasm, 975 So. 2d at 563 (emphasis added) (quoting Amends. to Fla. Rule of App. Proc. 9.140 & 9.600, 657 So. 2d 897, 898 (Fla. 1995)). That the legislature would carve out for the trial court the authority to award temporary appellate attorney fees makes practical sense as the appellate court is not equipped to hold an evidentiary hearing on the attorney fee issue and would necessarily have to remand it to the trial court during the pendency of the appeal. See id. ("Both the statute and the rule are designed to maintain jurisdiction in the circuit court during the existence of an appeal."). The Former Husband has simply cited no authority—in the trial court or on appeal—to support his argument that a timely rule 9.400(b) motion is necessary to preserve or later confirm an already granted rule 9.600(c) award of temporary appellate attorney fees, and the plain language of the statute and rules at issue here provides no such support. Furthermore, we conclude that it would be inequitable to require the Former Wife to repay the Former Husband a fee award based on her proven need and his proven ability to pay solely due to a perceived procedural error, especially in light of the fact that the Former Husband never challenged the award on substantive grounds. For all of these reasons, we reverse the trial court's order granting the Former Husband's Motion to Disgorge Award of Appellate Fees and Costs. Reversed and remanded. NORTHCUTT and SILBERMAN, JJ., Concur. -8-