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Chittim v. Chittim

Florida Court of Appeals, Second District

November 29, 2017

SHELLY L. CHITTIM, Appellant,
v.
DAVID M. CHITTIM, Appellee.

         Appeal from the Circuit Court for Hillsborough County; Wesley D. Tibbals, Judge.

          J. Chad Self, C. Todd Marks, Kelly M. Albanese, and Kylie M. Caporuscio of Westchase Law, Tampa, for Appellant.

          Elizabeth S. Wheeler and Carl J. Ohall of Berg & Wheeler, P.A., Brandon, for Appellee.

          ROTHSTEIN-YOUAKIM, JUDGE.

         BY ORDER OF THE COURT:

         The Former Husband's motion for rehearing is denied. The Former Husband's motion for clarification is granted. The prior opinion dated June 30, 2017 is withdrawn and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

         In this appeal, Shelly L. Chittim, the Former Wife, challenges the trial court's postbankruptcy denial of her motion for attorneys' fees and costs, which was based on a prebankruptcy award of attorneys' fees and costs in her dissolution proceeding. For the reasons set forth in the trial court's order, we agree that the Former Wife's attorneys, Westchase Law, cannot pursue a claim for attorneys' fees and costs against either the Former Wife or David M. Chittim, the Former Husband. We disagree, however, that the Former Wife is no longer entitled to the award of attorneys' fees and costs against the Former Husband that the trial court entered before she declared bankruptcy. Accordingly, we vacate the trial court's order and remand for a determination of the reasonable attorneys' fees and costs to which the Former Wife is entitled.

         Course of Proceedings

         In August 2014, the trial court entered a final judgment of dissolution awarding the Former Wife attorneys' fees and costs against the Former Husband (the fee award) pursuant to her request under section 61.16, Florida Statutes (2012), and Rosen v. Rosen, 696 So.2d 697, 700 (Fla. 1997); directing the parties to try to agree on the amount of reasonable attorneys' fees "that the Husband shall pay the Wife"; and reserving jurisdiction in case the parties were unable to agree. In September 2014, having received no satisfactory response from the Former Husband, the Former Wife moved for the court to enter an order awarding her reasonable attorneys' fees and costs. In December 2014, however, she declared bankruptcy, which stayed the determination.

         Westchase Law represented the Former Wife in both the dissolution and the bankruptcy proceedings. As part of its agreement to represent her in the dissolution proceeding, Westchase Law had filed a charging lien against her property. In the bankruptcy proceeding, however, it did not file any claim in connection with its fees and costs in the dissolution proceeding, and the Former Wife did not declare the fee award, either as an asset due to her or as a debt that she owed to Westchase Law, in her bankruptcy petition.

         In April 2015, the bankruptcy court granted the Former Wife a discharge under 11 U.S.C. § 727 (2012).

         In August 2015, at the direction of the trial court, the parties filed memoranda of law addressing the effect of the bankruptcy proceeding on the fee award. The Former Husband argued that the Former Wife should be judicially estopped from pursuing the fee award against him in light of her failure to include it as an asset on her bankruptcy petition and that, in any event, the fee award should be zero because the bankruptcy proceeding had discharged the Former Wife's debt to Westchase Law. The Former Wife argued that judicial estoppel was unwarranted because she had consistently maintained that the fee award was not an asset of the bankruptcy estate, that her bankruptcy proceeding had not discharged the Former Husband's debt to her, that Westchase Law's lien was enforceable against both her and the Former Husband and could not be discharged in the bankruptcy, and that, in any event, she had reaffirmed her debt to Westchase Law after the bankruptcy had been discharged.

         At a hearing before the trial court in September 2015, the evidence established that the Former Wife had disclosed the dissolution proceeding to the bankruptcy trustee in her statement of financial affairs and that, before the discharge, the trustee had also found out about the fee award. The trustee testified that after investigating the dissolution proceeding, she had not considered the fee award to be an asset of the estate.

         The Former Wife's expert testified that absent any reaffirmation agreement, the Former Wife's debt to Westchase Law had been discharged and was uncollectible against her. The expert clarified that the debt still exists but is simply unenforceable by Westchase Law against the Former Wife. Although the Former Wife's counsel repeatedly asserted that the Former ...


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