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Rosaler v. Rosaler

Florida Court of Appeals, Fourth District

August 30, 2017

SHARON P. ROSALER, Appellant,
v.
BRIAN L. ROSALER, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Timothy L. Bailey, Judge; L.T. Case No. FMCE-14-000003 41/98.

          Nancy A. Hass of Nancy A. Hass, P.A., Hollywood, for appellant.

          Cynthia L. Greene of Law Offices Greene Smith & Associates, P.A., Coral Gables, for appellee.

          Gross, J.

         Sharon Rosaler ("Former Wife") raises four issues in this appeal of a dissolution of marriage final judgment, all of which we affirm. We write solely to address Former Wife's second issue, and hold that a trial court does not abuse its discretion in considering the parties' litigation conduct to limit an award of attorney's fees under section 61.16, Florida Statutes, even where the party that benefits from the ruling occupies the superior financial position.

         In January 2014, the parties had been married eight and a half years; Former Wife petitioned for dissolution of marriage and ex parte injunctive relief. She alleged that she was compelled to leave the marital residence with the parties' three minor children for their safety, but would return if Former Husband was enjoined from residing at the residence.

         Shortly thereafter, Former Wife sought an injunction for protection against domestic violence against Former Husband, alleging, among other things, that he was sexually abusing the parties' children.

         The Former Wife's abuse allegations were not limited to court documents. She told their son's school principal that she believed Former Husband sexually abused the children. Former Wife also told the children's pediatrician that Former Husband sexually abused the two minor daughters. She told the pediatrician that she did not think Former Husband was sexually abusing the son, but believed the son "sniffled as much as he did" because Former Husband was giving him drugs.

         Former Wife's allegations were false. She admitted at the final hearing that filing for an injunction for protection on behalf of the children was "a mistake." Her false allegations about sexual misconduct raised the heat of the litigation beyond the boiling point.

         In May 2014, Former Wife moved for appointment of a guardian ad litem. She argued that such appointment was in the best interests of the children to address timesharing issues and Former Husband was in a better position to pay for those services. This motion came after the parties had already agreed to shared parental responsibility and equal timesharing in a stipulated temporary relief order.

         At the final hearing in January 2015, Former Wife sought attorney's fees based on her need and Former Husband's ability to pay. She sought $528, 433 in attorney's fees, $77, 399 in costs, and $303, 423.50 in forensic accountant fees, for a total of $909, 255.50. Former Wife also requested that Former Husband be ordered to pay the remaining guardian ad litem fees. Former Husband had paid $21, 445 to the guardian ad litem, while Former Wife had paid nothing.

         Former Wife's attorney billed almost 1, 000 hours from April 2014[1]through the final hearing in January 2015. According to Former Husband's fee expert, the hours billed by Former Wife's attorney were "astronomical" and represented an excessive amount of "handholding." Based on his experience, the case was not a particularly difficult one; he believed it would have been reasonable to spend between 200 and 250 hours on this case.

         Focusing on the financial circumstances of the parties, the trial court found that Former Wife had the need for attorney's fees and Former Husband had the ability to pay. However, the court noted that it could also consider "the history of the litigation, " and found that "just about the entirety of the Wife's fees were the result of her misconduct." As evidence of Former Wife's misconduct, the trial court cited Former Wife's false abuse allegations and her request for appointment of a guardian ad litem after the parties had already largely agreed on parental responsibility and timesharing. The ...


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