       Third District Court of Appeal
                               State of Florida

                        Opinion filed September 20, 2017.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                               No. 3D16-1772
                         Lower Tribunal No. 15-11270
                             ________________

                             Jose Antonio Ortiz,
                                    Appellant,

                                        vs.

                              Samantha Ortiz,
                                    Appellee.


      An appeal from the Circuit Court for Miami-Dade County, Sarah I. Zabel,
Judge.

      The Bravo Law Firm, PLLC and Jason Bravo; Garcia-Menocal Irias &
Pastori LLP and Jorge Garcia-Menocal, for appellant.

      Gallardo Law Office, P.A. and Natalia Timmons and Leisy Jimenez, for
appellee.


Before ROTHENBERG, C.J., and SUAREZ and LUCK, JJ.

      SUAREZ, J.

      Jose Ortiz, former husband, appeals from an order denying his motion for

reconsideration of the trial court’s award of the former wife’s statutory pre-
judgment attorney’s fees. We affirm in part and reverse in part and remand for

further proceedings.

      The former husband asserts on appeal that the Final Judgment of Dissolution

of Marriage erroneously awarded the former wife prejudgment attorney’s fees.

Prior to the final dissolution hearing, the parties entered into a Mediated Settlement

Agreement (Partial Agreement) solely resolving issues concerning the minor child.

The Agreement specifically stated, “Parties hereby agree to reserve on any issues

not specifically addressed herein.” It also stated “Each party shall be responsible

for his/her own attorney’s fees and/or costs associated with the present litigation.”

The former husband argued for the first time during his motion for reconsideration

below that pursuant to that language the former wife had waived any claim to any

attorney fees for the entire litigation.1       The trial court correctly rejected this

argument.    Parties to a marriage cannot contract away or waive temporary support

and attorney's fees before a final judgment is entered. Belcher v. Belcher, 271 So.

2d 7 (Fla. 1972); see also Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005);

Schecter v. Schecter, 109 So. 3d 833 (Fla. 3d DCA 2013).           We therefore affirm

the trial court’s order that the former wife did not waive her claim for statutory pre-

dissolution attorney’s fees


1  We note that former husband’s counsel conceded in his motion for
reconsideration of the attorney’s fee issue that he failed to raise the issue or object
to the wife’s proposed attorney’s fees during the final dissolution hearing.

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      The next question is whether the former wife is entitled to such fees and, if

so, the amount. The standard for the trial court’s award of attorney’s fees in a

dissolution action first depends upon the financial need of the requesting party and

the financial ability to pay of the other party. Derrevere v. Derrevere, 899 So. 2d

1152, 1153 (Fla. 4th DCA 2006); § 61.16, Fla. Stat. (2016). After making that

determination, the trial court then must determine whether the fees requested are

reasonable. In determining the reasonableness of attorney's fee, courts should

consider the following factors:

      (1) the time and labor required, the novelty and difficulty of the
      issues, and the legal skill required; (2) the likelihood that the
      representation will preclude other employment by the lawyer; (3) the
      customary fee; (4) the result obtained; (5) the time limitations
      imposed by the client or circumstances; (6) the nature and length of
      the professional relationship with the client; (7) the experience,
      reputation and ability of the lawyers; and (8) whether the fee is fixed
      or contingent.

Campbell v. Campbell, 46 So. 3d 1221, 1222–23 (Fla. 4th DCA 2010); Schwartz v.

Schwartz, 965 So. 2d 832, 833-34 (Fla. 1st DCA 2007). “Where there is nothing

in the trial court's order that allows the appellate court to discern whether any of

the above factors were considered in determining a reasonable attorney's fee, a fee

award simply taking the amount charged by the attorney and determining it to be

reasonable is improper and an abuse of discretion.” Campbell, 46 So. 3d at 1223.

“[T]he trial court must make specific factual findings—either at the hearing or in

the written judgment—supporting its determination of entitlement to an award of


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attorney's fees.” Perez v. Perez, 100 So. 3d 769, 771 (Fla. 2d DCA 2012). And “if

the trial court determines that there is an entitlement to fees, the court must ‘set

forth findings regarding the factors that justify the specific amount awarded.’” Id.;

Rowe v. Rodriguez-Schmidt, 128 So. 3d 158, 159 (Fla. 2d DCA 2013).

      The absence of factual findings in this record as to the parties’ need and

ability to pay, and reasonableness of fees makes it impossible for us to review the

propriety of the trial court's award of fees. Therefore, we remand solely for the

trial court to apply the necessary analysis and make the required written findings of

the parties’ needs, ability to pay, reasonableness of fees, and factors justifying the

attorney’s fees requested.

      Affirmed in part, reversed and remanded in part.

      ROTHENBERG, C.J., concurs.




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LUCK, J., concurring in part and dissenting in part:

      The majority opinion (1) affirms the final judgment of dissolution because

the “[p]arties to a marriage cannot contract away or waive temporary support and

attorney’s fees before a final judgment is entered,” and (2) reverses and remands

because “[t]he absence of factual findings in this record as to the parties’ need and

ability to pay, and the reasonableness of fees makes it impossible for us to review

the propriety of the trial court’s award of fees.” I concur in the first conclusion,

but respectfully dissent from the second one because it is contrary to our precedent

and inconsistent with how we review alleged errors where the appellant does not

provide us with a sufficient record.

      “In appellate proceedings the decision of a trial court has the presumption of

correctness and the burden is on the appellant to demonstrate error.” Applegate v.

Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979).

      Without a record of the trial proceedings, the appellate court can not
      properly resolve the underlying factual issues so as to conclude that
      the trial court’s judgment is not supported by the evidence or by an
      alternative theory. Without knowing the factual context, neither can
      an appellate court reasonably conclude that the trial judge so
      misconceived the law as to require reversal. The trial court should
      have been affirmed because the record brought forward by the
      appellant is inadequate to demonstrate reversible error.

Id.

      Here, the majority opinion correctly explains that the “trial court must make

specific factual findings – either at the hearing or in the written judgment –


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supporting its determination of entitlement to an award of attorney’s fees.” Maj.

Op. at 3-4 (emphasis added) (quoting Perez v. Perez, 100 So. 3d 769, 771 (Fla. 2d

DCA 2012)). The appellant, the former husband, however, did not include a

transcript of the final judgment hearing where the attorney’s fees were awarded as

part of the record in this case. Without a transcript, as in Applegate, we cannot

resolve whether the trial court made the factual findings it was required to make at

the hearing. From the lack of transcript, the majority opinion presumes the trial

court did not make the factual findings and remands for it do so. Because we must

presume the correctness of the trial court’s order, and it is the appellant’s burden to

demonstrate reversible error, I would do as Applegate commands and affirm.

      Our precedent, too, seems to dictate that we affirm. In E&A Produce Corp.

v. Superior Garlic International, Inc., 864 So. 2d 449 (Fla. 3d DCA 2003), as here,

the appellant “claim[ed] that none of the orders on appeal state the requisite

findings for an award of attorney’s fees, and because no statute was cited in the

orders or judgment, it is unclear whether the trial court awarded attorney’s fees

pursuant to sections 772.11 or 57.105.” Id. at 451-52. “We are unable,” we

explained, “to determine under what grounds the attorneys’ fees here were

awarded and whether or not the trial court made the requisite findings because

there is no transcript of the hearing on the entitlement to attorneys’ fees.” Id. at

452. “Without a transcript,” we continued, “the record is inadequate for us to



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review [the appellant’s] contention, and we cannot find that the trial court abused

its discretion in making the award.” Id. Citing Applegate, we concluded the

“[t]rial court’s orders and judgment must therefore stand.” Id.2




2 But see Guardianship of Halpert v. Rosenbloom, 698 So. 2d 938, 940 (Fla. 4th
DCA 1997) (“In the instant case, the lack of a transcript does not hinder this
court’s ability to review the trial court's order, because on its face it fails to satisfy
Rowe by not making any specific findings as to hourly rate or number of hours
reasonably expended. The order merely provides that, ‘The Court awards a lump
sum for reasonable attorney's fees and costs in the total amount of $3,200.00.’”);
Fowler v. First Fed. Sav. & Loan Ass’n of Defuniak Springs, 643 So. 2d 30, 33
(Fla. 1st DCA 1994) (“While the award of attorney fees may very well have been
based on competent, substantial evidence, the lack of a transcript and the absence
of any specific findings in the final judgment supporting the award, compels
reversal. Therefore, on remand, the trial judge should make the required findings,
or in the alternative, hold an evidentiary hearing. (citation omitted)); Macarty v.
Macarty, 29 So. 3d 434, 435 (Fla. 2d DCA 2010) (“[A]n award of attorney’s fees
without adequate findings justifying the amount of the award is reversible even
where the appellant has provided an inadequate record of the trial court
proceedings. Accordingly, we remand for the trial court to make the necessary
written findings required by [Rowe].” (quotation omitted; alteration in original)).
In Macarty, for the third time, the Second District certified this question of great
public importance:

      IS AN ORDER AWARDING ATTORNEY'S FEES PURSUANT TO
      FLORIDA PATIENT'S COMPENSATION FUND V. ROWE, 472
      So.2d 1145 (Fla.1985), THAT LACKS THE REQUIRED FINDINGS
      REGARDING THE NUMBER OF HOURS REASONABLY
      EXPENDED AND THE REASONABLENESS OF THE HOURLY
      RATE CHARGED FUNDAMENTALLY ERRONEOUS ON ITS
      FACE, THUS REQUIRING REVERSAL, EVEN WHEN THE
      APPELLATE RECORD DOES NOT INCLUDE A TRANSCRIPT
      OR APPROVED STATEMENT OF THE PROCEEDINGS BELOW?

Id.

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      To me, there is no meaningful distinction between this case and E&A

Produce. As long as the trial court is permitted to make its attorney’s fees findings

on the record at the hearing, and the appellant does not provide us with a transcript

of the hearing, we should not presume the trial court failed to do its job. Because

the former husband has not shown the trial court committed reversible error, I

would affirm the final judgment of dissolution is all respects.




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