JENNIFER C. MYRICK, Appellant,
DENNIS M. MYRICK, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Tracy
Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon,
Virginia R. Vetter, Tampa, for Appellee.
former wife appeals the trial court's order denying her
request for attorney fees and costs and requiring her to pay
the former husband's attorney fees and costs incurred in
this post-dissolution modification proceeding. We affirm the
denial of the former wife's fees and costs without
further comment. Because the trial court erred in ordering
the former wife to pay nearly all of the former husband's
attorney fees in this matter apparently as a sanction for the
former wife's litigation conduct, we reverse.
parties' marriage was dissolved by a final judgment
entered in 2012 which incorporated the parties' Marital
Settlement Agreement (MSA). Under the MSA, the parties agreed
to have shared parental responsibility with respect to their
minor child. They also agreed to a parenting plan and
timesharing schedule wherein the former wife would have the
majority timesharing with the child. The MSA provided that
"[i]n the event that the Husband shall relocate his
residence to within a ten (10) mile radius of the Wife's
current residence, the parties agree to revisit the Parenting
Plan and Timesharing Schedule with the minor child taking
into consideration the Husband's proximity to the
January 2013, the former husband relocated to within a ten
mile radius of the former wife's residence and tried to
revisit the timesharing agreement with the former wife. When
the former wife apparently refused to amicably revisit the
issue, the former husband obtained counsel who then filed a
petition for modification in February 2013, seeking primary
residential responsibility of the child, or, alternatively,
joint rotating timesharing as well as a corresponding change
to his child support obligation. Over the course of the
proceedings, the former husband obtained new counsel and
expanded his requests for relief. In response to the former
husband's evolving requests, the former wife eventually
suggested a 50/50 timesharing arrangement in October 2013.
Nevertheless, the litigation continued and in his Second
Amended Supplemental Petition for Modification filed in June
2014, the former husband sought sole parental responsibility
and a majority of the timesharing. The case proceeded to a
final hearing on the former husband's latest modification
petition in July and September of 2014, after which the trial
court awarded the former husband 100% of the overnights with
the child and ultimate parental responsibility regarding the
child's educational and mental health issues. The former
wife's contact with the child was restricted to alternate
weekend days and Wednesday dinners after school.
parties then moved for attorney fees and costs. In his motion
for attorney fees and costs, the former husband alleged that
he did not have sufficient funds to pay his fees, that the
former wife did have the ability to pay, and that she
"should be required to do so, especially because of the
unreasonable position she took in this case." The motion
did not mention section 61.16, Florida Statutes (2014),
Rosen v. Rosen, 696 So.2d 697 (Fla. 1997), or any
other basis for the award. After a hearing, the trial court
denied the former wife's request for fees and costs and
ordered the former wife to pay all of the former
husband's fees and costs, totaling $99, 876.24. Although
the trial court did not explicitly state the basis for its
award to the former husband, the court's findings and the
cases cited in its order suggest that it awarded the fees
under the inequitable conduct doctrine. See Bitterman v.
Bitterman, 714 So.2d 356, 365 (Fla. 1998). The trial
court subsequently granted the former wife's motion for
rehearing to the extent that the court reduced the former
husband's fee award by $3550-representing the work of the
former husband's first attorney-bringing the total amount
to $96, 326.24.
former wife now argues that the fee award must be reversed
because the trial court failed to make sufficient findings to
justify the award under the inequitable conduct doctrine.
Regardless of the lack of findings, she contends that her
behavior in this litigation did not rise to the level
warranting application of the inequitable conduct doctrine.
review an award of attorney's fees . . . for abuse of
discretion." Arena v. Arena, 103 So.3d
1044, 1045 (Fla. 2d DCA 2013). "Any determination
regarding an appropriate award of attorney's fees in
proceedings for dissolution of marriage, support, or child
custody begins with section 61.16, Florida Statutes . . .
." Rosen, 696 So.2d at 699.
Under this scheme, the financial resources of the parties are
the primary factor to be considered. However, other relevant
circumstances to be considered include factors such as 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
Id. at 700. Distinct from this scheme, the trial
court also has the inherent authority under the inequitable
conduct doctrine to award attorney fees as a sanction where
one party has exhibited egregious conduct or acted in bad
faith. See Bitterman, 714 So.2d at 365; Rogers
v. Wiggins, 198 So.3d 1119 (Fla. 2d DCA 2016);
Hahamovitch v. Hahamovitch, 133 So.3d 1020 (Fla. 4th
DCA 2014). "Such awards are rarely applicable and should
be reserved for extreme cases in which a party litigates
vexatiously and in bad faith." Hallac v.
Hallac, 88 So.3d 253, 259 (Fla. 4th DCA 2012).
"When a court uses its inherent authority to assess
attorney's fees, the court must make an express finding
of bad faith and include facts justifying the imposition of
the award." Hahamovitch, 133 So.3d at 1025;
see also Moakley v. Smallwood, 826 So.2d 221, 227
(Fla. 2002) ("[A] finding of bad faith conduct must be
predicated on a high degree of specificity in the factual
findings."). The trial court must also explicitly
apportion the amount of the award that is directly related to
the attorney fees and costs that the opposing party incurred
as a result of the additional work caused by the specific bad
faith conduct of the other party. Heiny v. Heiny,
113 So.3d 897, 903 (Fla. 2d DCA 2013). Unlike the scheme
under section 61.16, when proceeding under the inequitable
conduct doctrine the trial court does not need to make an
express finding of need and ability to pay. Becker v.
Becker, 778 So.2d 438, 439 (Fla. 1st DCA 2001).
the trial court did not explicitly state the basis for its
award, it is evident that the court awarded the fees under
the inequitable conduct doctrine. For instance, the trial
court made no mention of section 61.16 in the portion of the
order awarding the former husband his fees and costs, nor did
it make any findings regarding need and ability to pay. The
trial court also found several cases discussing the
inequitable conduct doctrine "instructive, "
including Mettler v. Mettler, 569 So.2d 496 (Fla.
4th DCA 1990), ...