final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Jack Schemer,
E. Workman, The Villages, for Appellant.
appearance, for Appellee.
post dissolution of marriage case, Appellant challenges the
final order requiring him to contribute $14, 048.75 towards
Appellee's attorney's fees and costs pursuant to
section 61.16, Florida Statutes (2017). He raises several
issues concerning the award, but we find only one was
preserved for review by Appellant as it was raised in his
motion seeking rehearing following the trial court's
order. See Owens v. Owens, 973 So.2d 1169, 1169
(Fla. 1st DCA 2007) (holding that a claim that a "final
judgment lacks sufficient findings of fact" must be
brought to the attention of a trial court by proper motion
for the claim to be preserved for appellate review). We find
that the trial court abused its discretion in making the
award without making factual findings on Appellee's need
and Appellant's ability to pay. See Mahoney v.
Mahoney, 251 So.3d 977 (Fla. 1st DCA 2018) (applying an
abuse of discretion standard in reviewing awards of
attorney's fees under section 61.16). We therefore
reverse and remand for further proceedings.
final order, the trial court made an express finding that
Appellant's "financial condition is superior to the
financial condition of" Appellee. However, there is no
language in the final order showing that the court first
found Appellee's need for financial assistance to retain
counsel and Appellant's ability to provide the needed
payment. The record contains a previous omnibus order on
several motions, including the partial grant of
Appellee's amended motion for attorney's fees. That
order, effective June 23, 2015, instructed Appellee to file
delineated evidence of attorney time and contemplated further
action to resolve the issue of attorney's
fees.[*] Like the final order on appeal, that
earlier order contained no express finding of fact that
Appellee had need for financial contribution towards her
attorney's fees or that Appellant had the ability to pay.
the court "may also consider any other factor necessary
to provide justice and ensure equity," the primary
consideration of the trial court in deciding whether to award
attorney's fees and costs under section 61.16 is
"the relative financial resources of the parties."
Mahoney, 251 So.3d at 980 (citations omitted). In
"considering the financial resources of both
parties," as required by section 61.16, "it is not
enough to simply show that the adverse party's ability to
pay the fees is greater than the party seeking relief or that
an award is based on the relative financial strain of paying
attorney's fees." Bauchman v. Bauchman, 253
So.3d 1143, 1148 (Fla. 4th DCA 2018) (quoting Carlson v.
Carlson, 719 So.2d 936, 936 (Fla. 4th DCA 1998)).
final order awarding the former wife's attorney's
fees is reversed and remanded to allow the trial court to
make the required factual findings. See Abott v.
Abbott, 187 So.3d 326, 329 (Fla. 1st DCA 2016);
Winder v. Winder, 152 So.3d 836, 842 (Fla. 1st DCA
2014); Mishoe v. Mishoe, 591 So.2d 1100, 1101 (Fla.
1st DCA 1992). Because Appellant's other issues were not
preserved for review, the trial court's findings of the
reasonable number of attorney hours, the uncontested
reasonable hourly rate, the reasonable total for
Appellee's attorney's fees, and the amount for costs
are affirmed and may be re-entered in the event the trial
court finds Appellee had a financial need and Appellant had
the ability to pay.
in part, Reversed in part, and Remanded.
and Makar, JJ, concur
[*] The June 23, 2015, order was
therefore nonfinal and not subject to appeal on its own.
See Threadgill v. Nishimura, 222 So.3d 633 (Fla. 2d
DCA 2017); Scullin v. City of Pensacola, 667 So.2d
215 (Fla. 1st DCA 1995). That order is within our scope of
review in ...