Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT RONALD G. CLETCHER, Appellant, v. SHERRI A. CLETCHER, Appellee. No. 2D21-1299 October 7, 2022 Appeal from the Circuit Court for Pasco County; Joshua Riba, Judge. Paul H. Bowen of Paul H. Bowen, P.A., Palm Harbor, for Appellant. Mark F. Baseman of Felix, Felix & Baseman, Tampa, for Appellee. CASANUEVA, Judge. In this appeal from a postdissolution order, Ronald G. Cletcher (the Former Husband) challenges several rulings made by the trial court that are memorialized in its Omnibus Order on All Remaining Issues and Pending Motions Before the Court (the "Omnibus Order"). We find no merit in the issues raised in this appeal, save one. We conclude that the trial court erred in awarding Sherri A. Cletcher (the Former Wife) her request for attorney's fees totaling $7,110 and reverse. I. PROCEDURAL HISTORY A final judgment dissolving the parties' marriage was entered on September 19, 2014,1 and the parties have continued to engage in postdissolution litigation since that time. At a case management conference held in January 2021, the parties asked the trial court to resolve all outstanding motions and unresolved issues before scheduling a hearing on the Former Husband's Amended Supplemental Petition for Modification of Final Judgment and the Amended Final Judgment in Alimony, Time Sharing, and Child Support. In March 2021, a hearing was held to address all matters that remained outstanding and, following that hearing, the trial court entered the Omnibus Order at issue in this appeal. 1 An amendment to the final judgment was entered later that year. 2 In its Omnibus Order, the trial court found that the Former Wife has a gross monthly income of approximately $15,083, which is about three and a half times greater than the Former Husband's gross monthly income of approximately $4,300. The trial court further found that the Former Wife's combined retirement savings are in excess of $778,000, while the Former Husband's retirement savings total approximately $136,000. Also noted by the trial court, the amended final judgment dissolving the parties' marriage ordered the Former Wife to transfer a portion of her retirement account to the Former Husband, and she admitted that she had not fully complied with the order as she had not distributed $30,000 of the required amount to him. The Omnibus Order ruled on several previously unresolved issues between the parties. Two of these rulings involve the award of attorney's fees for previous motions and their resulting orders that were entered in 2018. The first order was filed on July 26, 2018, and is titled, "Order Denying Former Husband's Motion to Reconsider Order on Case Management Conferences/Evidentiary Hearing on February 14th, 2018, and Motion for Rehearing." In that order, the trial court reserved "jurisdiction to determine Former 3 Wife's entitlement to fees in connection with Former Wife's Response to Former Husband's Motion to Reconsider the Order on Case Management Conference/Evidentiary Hearing on February 14, 2018, and Motion for Rehearing and the hearing thereon, including the amount of said fees." The second order was entered on July 31, 2018, and is titled "Order Granting in Part, and Denying in Part, Former Husband's Motion to Enforce Final Judgment of Dissolution of Marriage Against Former Wife for Failure to Pay Former Wife's Share of the Minor Child's Karate Expenses." In that order, the trial court "reserve[d] jurisdiction over the parties and subject matters herein, including any entitlement to attorney fees by either party." In its Omnibus Order, the trial court awarded the Former Wife her attorney's fees relating to these two proceedings. The trial court found "pursuant to §61.16 Florida Statutes, the amount of fees are reasonable and were reasonably necessary to defend against a proceeding brought by [the Former Husband]." The trial court further found "that [the Former Wife] has a need for the payment of attorney's fees and, based upon the history of this case, an award of 4 attorney's fees is appropriate." Regarding the Former Husband's ability to pay, the trial court stated, [The Former Husband], however, carries a monthly deficit. At first glance, it would appear that [the Former Husband] lacks an ability to pay [the Former Wife's] attorney's fees. However, as will be elaborated further herein, [the Former Wife] was previously ordered to distribute $30,000 from her IRA to [the Former Husband], which is still owed. At the time of that distribution order, the Court ruled that [the Former Wife] could reduce the IRA distribution to [the Former Husband] as a means of offsetting the equitable distribution claims she has against him. The Court finds that using the IRA offset is an appropriate method to ensure an equitable result. (Footnote omitted.) II. DISCUSSION A. Need and Ability to Pay The decision to award a party their attorney's fees is governed by section 61.16(1), Florida Statutes (2018). The statutory text requires the trial court to consider several factors in exercising its discretion to award fees. Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997). The primary factor that must be considered is the financial resources of the parties, but the court must also consider other relevant factors in making its determination. Id. "The consideration of need and ability to pay includes a consideration of 5 the overall financial resources of each of the parties, not just income and earning capacity." Perez v. Perez, 100 So. 3d 769, 771 (Fla. 2d DCA 2012). In the present case, the trial court recognized that "it would appear that" the Former Husband did not have the ability to pay the Former Wife's attorney's fees. To overcome this financial disability, the trial court turned to the equitable distribution award owed to the Former Husband. From that source the trial court concluded that equity would be served by permitting the attorney's fees to be set off against that sum. This court in Ingram v. Ingram, 277 So. 3d 718, 719 (Fla. 2d DCA 2019), reiterated that "[a]s a general rule, when 'marital property has been equitably distributed and the parties' incomes have been equalized through an alimony award, the trial court abuses its discretion by awarding attorney's fees.' " (quoting Hanson v. Hanson, 217 So. 3d 1165, 1168 (Fla. 2d DCA 2017)). Further, "[t]he grant or denial of a motion for attorney's fees must avoid ' "the inequitable diminution" of a spouse's share of an equitable distribution.' " Stewart v. Stewart, 290 So. 3d 607, 609 (Fla. 1st DCA 2020) (quoting Von Baillou v. Von Baillou, 959 So. 2d 6 821, 823 (Fla. 4th DCA 2007)). "If the equitable distribution scheme places the parties in substantially the same financial positions with equal abilities to pay attorney's fees, it is an abuse of discretion to award attorney's fees to one former spouse." Id. (first citing Kurtanovic v. Kurtanovic, 248 So. 3d 247, 253 (Fla. 1st DCA 2018); and then citing Hutchinson v. Hutchinson, 185 So. 3d 528, 529 (Fla. 1st DCA 2015)). Here, the final judgment dissolving the marriage imposed an alimony award to be paid to the Former Husband and equitably distributed the parties' assets. At the time of the hearing that resulted in the Omnibus Order, both parties had an alleged monthly deficit, but the Former Husband's financial position was clearly inferior to that of his former spouse. "Rosen cannot be applied to allow an award of attorney's fees in favor of a spouse with the greater financial ability to pay." Hahamovitch v. Hahamovitch, 133 So. 3d 1020, 1024–25 (Fla. 4th DCA 2014) (citing Hallac v. Hallac, 88 So. 3d 253, 259 (Fla. 4th DCA 2012)). As the trial court found and the record demonstrates, the greater financial ability to pay rests not with the Former Husband but rather with the Former Wife, and therefore, the trial court erred in awarding fees to the 7 Former Wife. See Hallac, 88 So. 3d at 260 (holding that award of attorney's fees in favor of husband was not permissible under section 61.16, because the primary factors of need and ability to pay were not met where husband earned more than $500,000 a year and wife's only income was a bridge-the-gap alimony award). Further, by subtracting the attorney's fee award from amount the Former Wife was previously ordered to pay the Former Husband, the trial court inequitably decreased his share of the equitable distribution. B. Bad Faith Conduct There is an additional basis upon which an award of attorney's fees may be imposed. In limited circumstances, "[a] trial court has inherent authority to order an attorney to pay opposing counsel's fees if the attorney acts in bad faith." Finol v. Finol, 912 So. 2d 627, 629 (Fla. 4th DCA 2005) (citing Bitterman v. Bitterman, 714 So. 2d 356 (Fla. 1998)). In doing so, the court must exercise caution. To ensure the proper use of this judicial power, the Florida Supreme Court has demanded that the assessment of fees must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct 8 that resulted in the unnecessary incurrence of attorneys' fees. Thus, a finding of bad faith conduct must be predicated on a high degree of specificity in the factual findings. In addition, the amount of the award of attorneys' fees must be directly related to the attorneys' fees and costs that the opposing party has incurred as a result of the specific bad faith conduct of the attorney. Moakley v. Smallwood, 826 So. 2d 221, 227 (Fla. 2002); see also Finol, 912 So. 2d at 629 (holding that trial court departed from the essential requirements of the law where it awarded fees without making an express finding of bad faith or making factual findings demonstrating how the attorney's fee award directly relates "to the fees incurred as a result of the alleged bad faith conduct"). The Omnibus Order in the present case contains no express finding of bad faith, and it makes no finding demonstrating how the attorney's fee award directly relates to the fees incurred as a result of any alleged bad faith conduct. Like the judgment in Cleary v. Cleary, 232 So. 3d 497, 498 (Fla. 2d DCA 2017), "[a]lthough otherwise thorough and detailed, the [Omnibus Order] is silent on this point." See Ingram, 277 So. 3d at 719 (holding that the trial court was required to explain "what portion of the fees incurred was 'occasioned by [the former] husband's misconduct.' " (alteration in original) (quoting Perez, 100 So. 3d at 773)). 9 III. CONCLUSION Accordingly, we reverse the portion of the Omnibus Order that awards the Former Wife the payment of her attorney's fees by the Former Husband. We affirm the Omnibus Order in all other respects without discussion. On remand, the circuit court is directed to enter an amended Omnibus Order striking the fee award and restoring to the Former Husband his equitable distribution award. Affirmed in part; reversed in part. NORTHCUTT and KHOUZAM, JJ., Concur. Opinion subject to revision prior to official publication. 10