FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Charlotte County; Leigh Frizzell
Cynthia L. Greene of Young, Berman, Karpf & Gonzalez,
P.A., Miami, for Appellant.
T. Oliver and Phyllis A. Walker of McCrory Law Firm, PL,
Punta Gorda, for Appellee.
Mae Allen (Former Wife) challenges the trial court's
final judgment of dissolution of marriage to Edward Juul
(Former Husband). We have jurisdiction. See Fla. R.
App. P. 9.030(b)(1)(A). We reverse that portion of the final
judgment that denied Former Wife's request for
attorney's fees under section 61.16, Florida Statutes
(2017); the trial court failed to make the statutorily
required findings as to the parties' respective financial
situations. We affirm, without further comment, the final
judgment in all other respects.
61.16(1) allows the trial court to "order a party to pay
a reasonable amount for attorney's fees, suit money, and
the cost to the other party" in a dissolution action
"after considering the financial resources of both
parties." In assessing a request for attorney's
fees, the trial court may consider relevant factors
such as the scope and history of the litigation; the duration
of the litigation; the merits of the respective positions;
whether the litigation is brought or maintained primarily to
harass (or whether a defense is raised mainly to frustrate or
stall); and the existence and course of prior or pending
Rosen v. Rosen, 696 So.2d 697, 700 (Fla. 1997).
section 61.16(1) "expressly requires the court to make
findings regarding the parties' respective financial
needs and abilities to pay." Sumlar v. Sumlar,
827 So.2d 1079, 1084 (Fla. 1st DCA 2002). The parties'
financial resources are the primary factor that the
trial court must consider; after all, "the purpose of
section 61.16, Florida Statutes, is to ensure that both
parties have comparable ability to retain competent
counsel." Hanson v. Hanson, 217 So.3d 1165,
1169 (Fla. 2d DCA 2017); see generally Phillips v.
Phillips, 264 So.3d 1129, 1132 (Fla. 2d DCA 2019)
(explaining what evidence the requesting party must present
to support an award of attorney's fees under section
61.16). "Even in those cases raising issues of
inappropriate conduct, the trial court still must consider
the parties' respective need for suit money and ability
to pay." Sumlar, 827 So.2d at 1085.
adhere to the statute's purpose, "[the trial] court
cannot deny attorneys' fees and costs under section 61.16
without making any findings as to the parties' relative
financial needs and abilities." Phillips, 264
So.3d at 1131 (quoting Powers v. Powers,
193 So.3d 1047, 1048 (Fla. 2d DCA 2016)). "[S]uch
findings may be made in the written final judgment
or at the hearing." Frezza v. Frezza,
216 So.3d 758, 760 (Fla. 2d DCA 2017).
Husband contends that Former Wife failed to preserve for
appeal or waived her right to assert on appeal the trial
court's failure to make the statutorily required findings
by failing to raise the issue in her motion for rehearing. We
recently rejected a similar contention. Engle v.
Engle, No. 2D17-620, 2019 WL 2844186, at *1 (Fla. 2d DCA
July 3, 2019). We explained:
In chapter 61 the legislature provides clear instructions to
trial courts to make specific mandatory findings of fact. But
the legislature did not include a provision requiring a
motion for rehearing to preserve a challenge to a lack of
statutory findings. Nor has the Florida Supreme Court or the
rules committee placed such a requirement upon family law
Engle, No. 2D17-620, 2019 WL 2844186, at *1.
Moreover, "the preservation rules were not designed to
allow a trial court to ignore statutory requirements of which
it should be aware. Certainly, a judge sitting in family
court should be cognizant of what findings are statutorily
required in a final judgment of dissolution."
Id. at *6 (quoting Fox v. Fox, 262 So.3d
789, 794 (Fla. 4th DCA 2018)). Therefore, "the trial
court's failure to make specific factual findings that
are required by statute as set forth in chapter 61 is
reversible error regardless of whether the error was first
raised in the trial court by means of a motion for
rehearing." Id.; see also Fox, 262
So.3d at 794-95 (receding from prior Fourth District opinions