MARIA TEREZA DE CASTELO BRANCO FERREIRA CLEARY, aka M. TERESA CLEARY, Appellant,
ROBERT W. CLEARY, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Catherine M.
D. Levine and Robert H. Mackenzie of Levine & Sullivan,
P.A., Tampa, for Appellant.
L. Kiely, Tampa, for Appellee.
Cleary v. Cleary, 872 So.2d 299 (Fla. 2d DCA 2004),
an opinion that provides the backdrop for the present appeal,
we reversed part of the circuit court's equitable
distribution and retroactive alimony award in a final
judgment of dissolution of marriage and remanded the case for
further proceedings so that the circuit court could fashion
an appropriate adjustment. We do not know why, but the
parties chose not to pursue the matter further in the circuit
court for more than a decade. In 2014 and 2015, however, the
litigants brought the dispute back before the court, seeking
what was, in essence, an accounting of all the payments and
transactions that had transpired which they contended should
be considered in the wake of this court's 2004 opinion
and remand. On August 30, 2016, after the conclusion of
evidentiary hearings in which the parties presented numerous
financial documents and the testimony of accountants, the
circuit court entered a final judgment. The final judgment
incorporated findings from a prior omnibus order and money
judgment that had been entered on October 5, 2015. Among its
rulings and determinations, the circuit court's final
judgment awarded $94, 482.25 of attorney's fees and costs
to Robert W. Cleary, the Former Husband. Maria Tereza de
Castelo Branco Ferreira Cleary, the Former Wife, now appeals
our review of the record, we find no error in the court's
factual determinations, including its conclusion that the
attorney's fees and costs the Former Wife incurred after
a December 1, 2014, meeting between the parties'
respective accountants were not reasonable. We also agree
with the circuit court's observation in the final
judgment that the Former Wife's "pursuit of her
claims [was] completely without merit, unjustified[, ] and
caused attorney's fees and costs for [the] Former Husband
that should not have been incurred."
we find problematic is that the final judgment never
described what legal basis supported an attorney's fee
award in favor of the Former Husband, whether it might be
section 61.16, Florida Statutes (2016), Rosen v.
Rosen, 696 So.2d 697 (Fla. 1997), or the court's
"inherent authority" to sanction egregious conduct
or bad faith litigation. See Moakley v. Smallwood,
826 So.2d 221, 226 (Fla. 2002); Myrick v. Myrick,
214 So.3d 769, 772 (Fla. 2d DCA 2017). Although otherwise
thorough and detailed, the final judgment is silent on this
briefing and at oral argument, the Former Husband disclaimed
inherent authority as a basis for the circuit court's
ruling, instead arguing that we should simply construe the
circuit court's findings within the framework of section
61.16(1) and Rosen. We are prevented from doing so,
however, because the final judgment included findings that
the Former Wife was entitled to have her
attorney's fees paid for by the Former Husband (up to
December 1, 2014), and that the Former Husband had an ability
to pay those fees for her. Those findings preclude premising
a fee award to the Former Husband under section 61.16 and
Rosen. See Rogers v. Wiggins, 198 So.3d
1119, 1121 (Fla. 2d DCA 2016) (holding under section 61.16(1)
and Rosen that "[w]hile the trial court may
take into account the manner in which the mother litigated a
case, that factor 'does not, however, abrogate the
requirement that [the mother] have the ability to pay.'
" (second alteration in original) (quoting Zanone v.
Clause, 848 So.2d 1268, 1271 (Fla. 5th DCA 2003)));
Hahamovitch v. Hahamovitch, 133 So.3d 1020, 1024-25
(Fla. 4th DCA 2014) ("Rosen cannot be applied
to allow an award of attorney's fees in favor of a spouse
with the greater financial ability to pay."). Were we to
categorize the final judgment's fee award as an exercise
of inherent authority-which, again, the Former
Husband does not believe we should do-we would still be
constrained to reverse that part of the judgment, as the
disputed accounting issues concerning credits and payments
between these litigants do not present the kind of
"extreme case" that would give rise to this
"rarely applicable" common law sanction. See
Bitterman v. Bitterman, 714 So.2d 356, 365 (Fla. 1998);
Hallac v. Hallac, 88 So.3d 253, 259 (Fla. 4th DCA
2012) ("Such awards are rarely applicable and should be
reserved for extreme cases . . . .").
we must reverse the portion of the final judgment that awards
the Former Husband his attorney's fees from the Former
Wife. We affirm the judgment in all other respects. On
remand, the circuit court shall enter an amended final
judgment striking the fee award in favor of the Former
in part; reversed in part; remanded with instructions.
CASANUEVA and ...