from the Circuit Court for Brevard County, Nancy Maloney,
L. Platt and Tiffani R. Cole, of Platt Hopwood Attorneys at
Law PLLC, Melbourne, for Appellant.
Elizabeth Siano Harris, of Harris Appellate Law Office, Mims,
BANC CONSIDERATION OF APPELLEE'S MOTION FOR
Appellee, Christine Bowser ("Mother"), has moved
for appellate attorney's fees pursuant to section
742.045, Florida Statutes (2015). Mother acknowledges that
this court's precedent in Starkey v. Linn, 727
So.2d 386, 388 & n.3 (Fla. 5th DCA 1999), provides that
this statute does not authorize or allow an award of
appellate attorney's fees in paternity actions. She asks
that we recede from our decision in Starkey and
grant her motion. Pursuant to Florida Rule of Appellate
Procedure 9.331, the majority of the judges of this court
have voted to consider this matter en banc. For the following
reasons, we grant Mother's motion and recede from
1991, the Florida Legislature enacted section
742.045. The first sentence of this statute, which
has remained unchanged for twenty-six years, provides:
The court may from time to time, after considering the
financial resources of both parties, order a party to pay a
reasonable amount for attorney's fees, suit money, and
the cost to the other party of maintaining or defending any
proceeding under this chapter, including enforcement and
§742.045, Fla. Stat. (2015).
sentence is identical to the first sentence of the 1991
version of section 61.16, Florida Statutes, applicable in
dissolution of marriage proceedings. At the time, section
61.16 was construed by each appellate court as authorizing
attorney's fees awards both at trial and on appeal.
See Chisholm v. Chisholm, 538 So.2d 961, 963 (Fla.
3d DCA 1989); Gieseke v. Gieseke, 499 So.2d 839, 839
(Fla. 4th DCA 1986); Thornton v. Thornton, 433 So.2d
682, 685 (Fla. 5th DCA 1983); Bryan v. Bryan, 342
So.2d 858, 859 (Fla. 2d DCA 1977); Sommese v.
Sommese, 324 So.2d 647, 648 (Fla. 1st DCA 1976).
Legislature is presumed to be acquainted with judicial
decisions on the subject concerning which it subsequently
enacts a statute." Collins Inv. Co. v. Metro. Dade
Cty., 164 So.2d 806, 809 (Fla. 1964), superseded by
statute on another issue as recognized in Alder-Built
Indus., Inc. v. Metro. Dade Cty., 231 So.2d 197, 199
(Fla. 1970). Therefore, when the Legislature enacted section
742.045 in 1991 and utilized the identical language from
section 61.16, it presumably knew and thus approved of the
earlier judicial construction of section 61.16 to award
attorney's fees both at trial and on appeal.
1994, the Legislature amended the first sentence of section
61.16, by adding the words "and appeals" to the end
of the sentence. The Legislature did not similarly amend
section 742.045. In 1999, our court concluded in
Starkey that section 742.045 did not authorize
appellate attorney's fees in paternity cases because the
words "and appeals" now in section 61.16 were
"conspicuously" absent from section 742.045,
apparently reasoning that the Legislature implicitly intended
to preclude appellate attorney's fees in paternity cases
when it amended section 61.16 without similarly amending
section 742.045. See 727 So.2d at 388 n.3. We now
hold that our interpretation in Starkey was
of statutory interpretation are reviewed de novo."
Kumar v. Patel, 227 So.3d 557, 558-59 (Fla. 2017)
(citing Borden v. E.-European Ins., 921 So.2d 587,
591 (Fla. 2006)). Accordingly, in reviewing section 742.045,
"[w]e first examine the statute's plain meaning,
resorting to rules of statutory construction only if the
statute's language is ambiguous." Id.
(citing Holly v. Auld, 450 So.2d 217, 219 (Fla.
1984)); see also BedRoc Ltd., LLC v. United States,
541 U.S. 176, 183 (2004) (stating that statutory
interpretation "begins with the statutory text, and ends
there as well if the text is unambiguous"). Because
section 742.045 unambiguously provides for an award of
attorney's fees for maintaining or defending any
proceeding under this chapter, there is no need to
resort to rules of statutory construction to ascertain the
legislative intent behind the statute. See Brook v.
State, 999 So.2d 1093, 1097 (Fla. 5th DCA 2009) (citing
Cherry v. State, 959 So.2d 702, 713 (Fla. 2007)).
Where, as here, the Legislature has not specifically defined
"proceeding" in chapter 742, this term should be
given its plain and ordinary meaning. See Debaun v.
State, 213 So.3d 747, 751 (Fla. 2017) (quoting Sch.
Bd. of Palm Beach Cty. v. Survivors Charter Sch., Inc.,
3 So.3d 1220, 1233 (Fla. 2009)). And, "[w]hen
considering the plain meaning of an undefined statutory term,
Florida courts may consult dictionaries to derive the
term's ordinary definition." Hurd v. State,
229 So.3d 876 (Fla. 5th DCA 2017) (citing Debaun,
213 So.3d at 751).
Law Dictionary defines "proceeding" as "[a]ny
procedural means for seeking redress from a tribunal or
agency." Proceeding, Black's Law
Dictionary (10th ed. 2014). Similarly,
Merriam-Webster's Dictionary of Law defines
"proceeding" as "a particular step or series
of steps in the enforcement, adjudication, or administration
of rights, remedies, laws, or regulations."
Proceeding, Merriam-Webster's Dictionary of
Law (1996); see also Raymond James Fin. Servs., Inc.
v. Phillips, 126 So.3d 186, 190 & n.4 (Fla. 2013)
(utilizing these two definitions of the term
"proceeding"). This appellate court clearly is a
tribunal from which a party may seek redress. Moreover,
"an appeal is but part of the action being
appealed." Disney v. Vaughen, 804 So.2d 581,
583 (Fla. 5th DCA 2002) (citing Williams v. Brochu,
578 So.2d 491(Fla. 5th DCA 1991)). Therefore, because Mother,
by defending in this appellate proceeding arising from a
final judgment of paternity entered under chapter 742,
Florida Statutes, is taking a ...