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Hollonbeck v. Hollonbeck

Florida Court of Appeals, First District

August 13, 2019

Renee Marie Hollonbeck, n/k/a Renee Marie Turley, Former Wife, Appellant,
v.
Sean Andrew Hollonbeck, Former Husband, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Bay County. Ana Garcia, Judge.

          E. Jane Brehany of E. Jane Brehany, P.A., Pensacola, for Appellant.

          Clay B. Adkinson of Adkinson Law Firm, LLC, DeFuniak Springs, for Appellee.

          WINOKUR, J.

         Renee Marie Hollonbeck challenges both the trial court's Final Judgment and Amended Final Judgment establishing a parenting plan, child support, time-sharing schedule, and other related relief. We find that the trial court did not consider or make any findings regarding her former husband's ability to pay attorney's fees and the former wife's need to have the fees paid. See Fulmer v. Fulmer, 961 So.2d 1081, 1082 (Fla. 1st DCA 2007); Perrin v. Perrin, 795 So.2d 1023, 1024 (Fla. 2d DCA 2001). We also find that the trial court failed to calculate pre-judgment interest for its award of retroactive child support. See Herrero v. Pearce, 571 So.2d 96, 97 (Fla. 1st DCA 1990). Finally, we find that the trial court abused its discretion when it ordered shared parental responsibility, but gave the former husband ultimate decision-making authority over the child. See Neville v. McKibben, 227 So.3d 1270, 1272-73 (Fla. 1st DCA 2017); Cranney v. Cranney, 206 So.3d 162, 164 (Fla. 2d DCA 2016). We reject the former wife's remaining claims.

         As to the attorney's fees issue, the former husband correctly notes that a trial court is permitted to consider the parties' litigation conduct to limit an award of attorney's fees. See Rosaler v. Rosaler, 226 So.3d at 911 (Fla. 4th DCA 2017). However, in determining whether and how much to award fees under section 61.16(1), Florida Statutes, "the financial resources of the parties are the primary factor to be considered." Rosen v. Rosen, 696 So.2d 697, 700 (Fla. 1997). While "section 61.16 should be liberally- not restrictively-construed to allow consideration of any factor necessary to provide justice and ensure equity between the parties," id., which may result in no award of fees at all, a trial court must consider the "financial resources of both parties." § 61.16(1), Fla. Stat. The record reflects no such consideration.[*]

         As to the issue of shared parental responsibility and ultimate decision-making authority, Florida law requires that trial courts award parents shared parental responsibility "unless the court finds that shared parental responsibility would be detrimental to the child." § 61.13(2)(c)2., Fla. Stat. Therefore, the trial court has two options at its disposal: 1) grant both parents shared parental responsibility and "grant to one party the ultimate responsibility over specific aspects of the child's welfare" or "divide those responsibilities between the parties based on the best interests of the child"; or 2) grant "sole parental responsibility for a minor child to one parent, with or without time-sharing with the other parent if it is in the best interests of the minor child." § 61.13(2)(c)2.a.-b., Fla. Stat.

         Accordingly, we reverse and remand so that the trial court can 1) make the appropriate findings regarding both parties' ability to pay and need for attorney's fees; 2) calculate and impose pre-judgment interest on its award of retroactive child support; and 3) refashion its determination of parental responsibility and decision-making authority consistent with its findings and the law.

         Affirmed in part, Reversed in part, and Remanded.

          M.K. Thomas, J, concurs; Makar, J, concurs in part and dissents in part with opinion.

          Makar, J., concurring in part, dissenting in part.

         I concur as to the pre-judgment interest and parental responsibility issues but view it as unnecessary for a trial judge to go through the burden of determining the parties' respective financial abilities to pay attorneys' fees when she's already decided that ...


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