final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 13-20251, Maria Elena Verde, Judge.
Crabtree & Auslander and John G. Crabtree, Charles M.
Auslander and Brian C. Tackenberg, for appellant.
Richard A. Schurr; Christy L. Hertz, for appellee.
SUAREZ, LAGOA and SALTER, JJ.
Motion for Review of Judgment Awarding Appellate Fees and
Viscito seeks review of a circuit court order and judgment
awarding appellate attorney's fees and costs to the
appellee, Barbara Viscito, pursuant to our opinion affirming
the trial court's final judgment in the parties'
dissolution of marriage case,  and our order conditionally
granting and remanding the motion for appellate
attorney's fees. Mr. Viscito's motion is well taken;
the trial court's order awarded Ms. Viscito $63, 364.00
in appellate attorney's fees and $4, 208.00 for costs
without entering the findings required by Rosen v.
Rosen, 696 So.2d 697, 700 (Fla. 1997), and section
61.16, Florida Statutes (2016).
order of December 21, 2016, specified that Ms. Viscito's
motion for appellate attorney's fees was
"conditionally granted and remanded to the trial court
to fix amount pursuant to Rosen v. Rosen, 696 So.2d
697 (Fla. 1997)." Rosen requires a "need
and ability to pay" analysis before an award is made.
"Appellate attorney's fees are awarded on the basis
of needs and ability to pay in family law cases and not on
the prevailing party analysis." Phillip J. Padovano, 2
Fla. Prac., Appellate Practice § 22:5, n. 5
(2016 ed.). Section 61.16(1) makes this assessment equally
applicable to an award of costs as well as appellate
attorney's fees, "unless an appellate party's
cause is deemed to be frivolous." Our opinion in this
appeal did not deem Mr. Viscito's arguments to be
review of the hearing transcript shows that the trial court
believed that this Court's December 21, 2016, order only
required a determination as to reasonable fee amount. The
language used by this Court (to "fix" an amount
pursuant to Rosen) may have led to this conclusion.
At the fee and costs hearing, the former husband argued that
the trial court was required under this Court's
"conditional" grant of fees to consider first need
and ability to pay, but the trial court would not hear
argument on the issue as it was under the impression that it
was only required to fix an amount.
Court explained in Randall v. Randall, 930 So.2d 840
(Fla. 3d DCA 2006), this Court may either grant appellate
attorney's fees and remand for the trial court to assess
a reasonable fee,  or provisionally grant appellate
attorney's fees and remand to establish entitlement under
Rosen, but in either event, the Court's
"order says so." Id. at 841.
the Fourth District Court of Appeal explained in Gerhardt
v. Gerhardt, 738 So.2d 485, 486 (Fla. 4th DCA
1999), reiterating that Court's holding in White v.
White, 683 So.2d 510, 512-13 (Fla. 4th DCA 1996):
[W]hen we grant a motion for appellate attorney's fees
founded on section 61.16, we have no way of knowing how great
is the need to equalize the access to legal services, nor how
great is the ability to pay. . . . Hence, a blanket grant of
a motion for appellate attorney's fees under section
61.16 is, unless we expressly say otherwise in the order
granting the motion, a determination of only whether the
matter of appellate fees should be further addressed by the
trial court. It represents our tentative conclusion that the
moving party should be given a chance to show that he or she
needs help from the adverse party as to some or all of the
appellate fees reasonably incurred and, if the need is
proven, that the paying party has the ability to defray some
or all of the moving party's fees. We have then concluded
preliminarily that an apparent, or prima facie,
basis for a fee award exists under section 61.16, but that
the final award is subject to a determination of need and
ability by the trial judge. It is not an apportionment
decision by us of the moving party's needs or the paying
party's ability, any more that it represents a decision
by us as to the amount of the fees deemed reasonable.
already noted, this Court's December 21, 2016, order
states that the attorneys' fees are "conditionally
granted" and that the trial court is to fix an amount
pursuant to Rosen-which itself requires that primary
consideration be given to the financial resources of the
parties. There was no evidence presented at the fee and costs
hearing regarding the financial resources of the parties, the
former wife's need for appellate attorneys' fees, or
the former husband's ability to pay. The fee and costs
order is therefore not supported by competent, substantial
evidence and constitutes an abuse of the trial court's
discretion. See Sierra v.Sierra, 505 So.2d
432, 434 (Fla. 1987) ("[T]he necessity and the
reasonableness of an award of ...