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 BRUCE FAGEN, ) ) Petitioner, ) ) v. ) Case No. 2D19-2948 ) JODI MERRILL f/k/a Jodi Fagen, ) ) Respondent. ) ) Opinion filed April 17, 2020. Petition for Writ of Certiorari to the Circuit Court for Pinellas County; Rebecca Hamilton, Judge. Jane H. Grossman, St. Petersburg, for Petitioner. Jeremy T. Simons, New Port Richey, for Respondent. BLACK, Judge. Bruce Fagen (the Former Husband) seeks certiorari review of the order requiring that he disclose certain financial information for the purpose of determining whether Jodi Merrill (the Former Wife) is entitled to attorney's fees incurred in connection with her motion to set aside the amended agreed final judgment of dissolution of marriage. The Former Wife's motion to set aside the final judgment has been pending for approximately five years. And in the absence of a ruling on the merits of that motion, it was improper for the trial court to order the disclosure of the Former Husband's financial information since it is not currently relevant to any issue in the litigation. Therefore, we grant the petition for writ of certiorari in part. The amended agreed final judgment of dissolution of marriage was entered in April 2014. Thereafter, the Former Wife moved to set aside the final judgment pursuant to Florida Rule of Civil Procedure 1.540(b) and Florida Family Law Rule of Procedure 12.540(b), alleging that the Former Husband had committed fraud by failing to disclose a payment made to him in the amount of $1,750,000 that constituted a marital asset subject to equitable distribution. The Former Wife requested that the trial court set aside the final judgment; set an evidentiary hearing on the issues of equitable distribution, alimony, and child support; and award her temporary and permanent attorney's fees pursuant to section 61.16, Florida Statutes (2014). A few years later, in 2018, the Former Wife filed a motion for temporary attorney's fees incurred in connection with her still-pending rule 1.540(b) motion pursuant to section 61.16. In turn, the Former Husband moved to strike that motion or for protective order. On July 3, 2019, a nonevidentiary hearing was held on the Former Husband's motion to strike. Following the hearing, the trial court entered an order denying the Former Husband's motion to the extent it sought to strike the fees motion but granting the Former Husband's motion in part to the extent it sought a protective order. The trial court limited discovery to the issues of need and ability to pay for the purpose of making a -2- fees determination and ordered the disclosure of updated financial affidavits, 2018 tax returns, pay stubs for the previous three months, bank statements, and credit card statements. The Former Husband then filed a petition for writ of certiorari in this court. The Former Husband argues in the petition that the trial court's order departs from the essential requirements of law resulting in irreparable injury to him and therefore must be quashed in full. However, the Former Husband fails to present any argument with regard to how the trial court erred in denying his motion to the extent it sought to strike the Former Wife's fees motion. Therefore, we are limited to reviewing the trial court's order to the extent it mandates the disclosure of certain financial information. "A petition for [writ of] certiorari is appropriate to review a discovery order when the 'order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.' " Inglis v. Casselberry, 200 So. 3d 206, 209 (Fla. 2d DCA 2016) (quoting Winderting Invs., LLC v. Furnell, 144 So. 3d 598, 601-02 (Fla. 2d DCA 2014)). "[T]he disclosure of personal financial information [via discovery] may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant." Spry v. Prof'l Emp'r Plans, 985 So. 2d 1187, 1188 (Fla. 1st DCA 2008) (second alteration in original) (quoting Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So. 2d 189, 194 (Fla. 2003)).1 Here, the Former Wife sought an award 1Generally, "[t]he relevance of financial information should be determined only after an evidentiary hearing, because 'the Florida Constitution protects the financial information of individuals if there is no relevant or compelling reason to compel disclosure.' " Spry, 985 So. 2d at 1188-89 (quoting Borck v. Borck, 906 So. 2d 1209, 1211 (Fla. 4th DCA 2005)); accord Inglis, 200 So. 3d at 209. Although a hearing was held in this case, no evidence was presented. The Former Husband has not, however, argued this point as a basis for relief. -3- of attorney's fees incurred in connection with her motion to set aside the final judgment, and thus the financial information referenced in the trial court's order may become relevant to the trial court's determination in that regard. See § 61.16(1); Rowe v. Rodriguez-Schmidt, 128 So. 3d 158, 159 (Fla. 2d DCA 2013). However, it is apparent that pursuant to Bane v. Bane, 775 So. 2d 938 (Fla. 2000), and Spano v. Spano, 698 So. 2d 324 (Fla. 4th DCA 1997), the order compelling discovery is premature since there has been no ruling on the merits of the Former Wife's motion to set aside the final judgment. The supreme court in Bane held that section 61.16 authorizes an award of attorney's fees where those fees are incurred in connection with the filing of a rule 1.540(b) motion to set aside a settlement agreement incorporated into a final judgment of dissolution based on fraud as long as the award complies with Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997). Bane, 775 So. 2d at 942, 944. The supreme court considered the issue as a result of this court's certification of conflict with Spano. See Bane v. Bane, 750 So. 2d 77, 78 (Fla. 2d DCA 1999). In Bane, the trial court granted the former wife's rule 1.540(b) motion and set aside the parties' property settlement agreement. 775 So. 2d at 940. The dissolution proceedings then continued, and during that time the former wife filed a motion seeking to recover the attorney's fees she had incurred in moving to set aside the settlement agreement. Id. The trial court granted the motion for fees, and this court upheld that ruling. Thereafter the supreme court approved this court's decision and disapproved Spano "insofar as it can be read to stand for the blanket proposition that a court is precluded as a matter of law from awarding attorney's -4- fees under section 61.16 for a rule 1.540(b) proceeding to set aside a property settlement agreement." 775 So. 2d at 942, 944.2 Although the supreme court determined that an award of fees under section 61.16 for a rule 1.540(b) proceeding is not prohibited as a matter of law, in doing so it agreed with the Fourth District that deference must still be given to settlement agreements: The policy of deference to settlements should apply with special force to consent judgments for property division in divorce cases. The law strongly encourages voluntary resolutions in all cases, but in no area is this more true than when the parties seek to dissolve their marriage. Society has the strongest possible interest in seeing the end of discord among family members and between the parents of young children. Indeed we have provided an entire set of forms and rules for uncontested dissolution of marriage cases, and we require mediation in all contested ones. To settle these cases is blessed. The preference for settlements would be undermined if a contracting party could finance—with the funds of the party seeking to uphold the agreement—unsuccessful proceedings to undo such agreements simply by showing need and ability to pay. Bane, 775 So. 2d at 943 (quoting Spano, 698 So. 2d at 328). The supreme court explained that its holding in no way conflicts with that policy. See id. The supreme court also addressed the Fourth District's concern "that a party should not be rewarded for meritless actions in seeking to void a valid and binding settlement agreement": as 2Given the factual differences in Spano, the supreme court in Bane did not disapprove of the result reached in Spano, namely, the Fourth District's decision to reverse the award of fees. See Bane, 775 So. 2d at 943. In contrast to the facts of Bane, the former wife in Spano was not successful in her efforts to set aside the property settlement agreement. Spano, 698 So. 2d at 325. The property settlement agreement therefore remained in effect, governed her right to fees, and established that she was not entitled to fees. See id. -5- long as the settlement agreement itself does not preclude the trial court from awarding fees, a fee award is not otherwise prohibited by section 61.16 if the trial court considers all of the factors set forth in Rosen in making such an award. See Bane, 775 So. 2d at 942-43. Rosen requires that a court consider more than just the financial resources of the parties when awarding fees under section 61.16; courts must also consider equitable factors, including "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." 696 So. 2d at 700. Neither Bane nor Spano involved the factual circumstances present here: an order allowing for discovery of financial information for the purpose of making an attorney's fees determination under section 61.16 where those fees will be incurred or are being incurred for a still-pending rule 1.540(b) motion seeking to set aside an agreed final judgment of dissolution. It is nonetheless apparent that the trial court's order in this case conflicts with the reasoning and policy considerations underlying the supreme court's holding in Bane. It is clearly premature, as the Former Husband argues, to order the discovery of his financial information for the purpose of awarding attorney's fees under section 61.16 when the merits of the Former Wife's rule 1.540(b) motion have not yet been considered by the trial court. After all, the trial court, in making a fees determination under chapter 61 and pursuant to Rosen, must consider more than just need and ability to pay. See Bane, 775 So. 2d at 942-43; see also Bane, 750 So. 2d at 78-79 (reversing award of attorney's fees and remanding for a hearing where this court was "unable to determine whether the judge weighed all of the Rosen -6- factors in awarding the[] fees" in connection with the former wife's successful rule 1.540(b) motion); Spano, 698 So. 2d at 328-29 ("[I]f somehow this could be characterized as a proceeding arising under chapter 61, the recent decision in Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997), would require that the award be reversed. . . . In the case we face today, it is clear that the trial court considered only need and ability, and gave no thought to whether equitable factors, including who prevailed and the nature of the proceeding brought by the fee seeking party, should result in a denial of fees."); cf. Lamolinara v. Lamolinara, 85 So. 3d 1147, 1150 (Fla. 1st DCA 2012) (remanding for the trial court to determine based on the Rosen factors whether the former wife was entitled to attorney's fees incurred in unsuccessfully moving to set aside the final judgment of dissolution based on fraud where the motion was not frivolous). So unless and until the Former Wife decides to pursue her rule 1.540(b) motion, the financial information referenced in the trial court's discovery order is not relevant to any issue in this litigation. The trial court's order therefore departs from the essential requirements of law resulting in irreparable injury to the Former Husband. Cf. Elkins v. Elkins, 252 So. 3d 254, 255 (Fla. 4th DCA 2018) ("The former husband has shown that the trial court's order in this case departs from the essential requirements of the law because the requested financial discovery has not yet been determined to be relevant to any issue in the litigation. Because the court found the marital settlement agreement to be ambiguous, the order compelling discovery is premature. The court must determine the meaning of the agreement before it can decide if the discovery is relevant to whether the former husband met his obligations." (citation omitted)). -7- Because the trial court's order departs from the essential requirements of law resulting in irreparable injury, the petition for writ of certiorari is granted in part and the trial court's order is quashed to the extent that it orders the disclosure of the Former Husband's financial information for the purpose of determining the Former Wife's entitlement to attorney's fees. See Inglis, 200 So. 3d at 212; Elkins, 252 So. 3d at 256. We express no opinion with regard to the trial court's denial of the Former Husband's request to strike the fees motion. Petition granted in part; order quashed in part. MORRIS and SALARIO, JJ., Concur. -8-