         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT




MORIYA MCNULTY,

              Appellant,

 v.                                                      Case No. 5D16-3330

CHRISTINE BOWSER,

              Appellee.

________________________________/

Opinion filed January 5, 2018

Appeal from the Circuit Court
for Brevard County,
Nancy Maloney, Judge.

Jack 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, for Appellee.


                       ON EN BANC CONSIDERATION OF
                   APPELLEE’S MOTION FOR ATTORNEY’S FEES

LAMBERT, J.

       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 Starkey.

       In 1991, the Florida Legislature enacted section 742.045.1 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 modification
                proceedings.

§742.045, Fla. Stat. (2015).

       This 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).

       “The 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




       1   See Ch. 91-246, § 7, at 2416, Laws of Fla.


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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.

       In 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 erroneous.

       “Questions 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.


                                             3
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).

         Black’s 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 particular step in the

adjudication of both her and her children’s rights, we conclude that she is entitled to an

award of appellate attorney’s fees under the plain language and meaning of section

742.045.

         We therefore recede from Starkey and grant Mother’s motion for appellate

attorney’s fees, conditioned upon a showing of her need and Father’s ability to pay. We

remand for the trial court to make that determination and to award Mother a reasonable

fee, should need and ability to pay be established.


                                             4
      MOTHER’S MOTION FOR APPELLATE ATTORNEY’S FEES GRANTED; CASE

REMANDED.

COHEN, C.J., SAWAYA, PALMER, ORFINGER, TORPY, EVANDER, WALLIS, and
EDWARDS, JJ., concur.

EISNAUGLE, J., dissents, with opinion, in which BERGER, J., concurs.




                                         5
EISNAUGLE, J., dissenting.                                           Case No. 5D16-3330

       I dissent and would not recede from Starkey v. Linn, 727 So. 2d 386 (Fla. 5th DCA

1999). As Judge Klingensmith astutely explained in Beckford v. Drogan, while section

742.045, Florida Statutes (2015), “specifically identifies enforcement and modification

actions as ‘proceedings’ under chapter 742, Florida Statutes, nothing within the entirety

of that chapter identifies ‘any proceeding under this chapter’ to include appeals.” 216 So.

3d 1, 2 (Fla. 4th DCA 2017) (Klingensmith, J., dissenting) (citing Ali v. Fed. Bureau of

Prisons, 552 U.S. 214, 228 (2008); Pavelic & LeFlore v. Marvel Entm't Grp., 493 U.S.

120, 126 (1989)).

       The majority here makes the same error as the majority in Beckford.             After

announcing that the statute is unambiguous, the majority focuses solely on the phrase

“any proceeding.” I agree that “any proceeding” is clear, and that an appeal is a legal

proceeding, but the phrase “under this chapter” is equally clear. And while the phrase

“any proceeding” is quite broad, it is obviously narrowed by the phrase “under this

chapter.” Thus, the question here is not whether an appeal is a “proceeding,” but whether

an appeal is a proceeding “under” chapter 742. Yet, the majority fails to include this

narrowing phrase in its analysis.

       As the majority recognizes, the Legislature knows how to revise an attorney’s fees

statute to include appellate attorney’s fees when it so desires. This court is without

constitutional authority to make policy decisions or rewrite the statute by giving effect to

only part of its language, no matter how much we may dislike the outcome. Thus, I would

give meaning to all of the language within section 742.045, and find no grounds to recede

from the decision rendered by this court eighteen years ago in Starkey.




                                             6
      For what it’s worth, I agree that the Legislature should amend the statute to

authorize appellate attorney’s fees. Nevertheless, eighteen years after Starkey, it has not

done so. While I invite them to do so now, that decision is for the Legislature alone.

BERGER, J., concurs.




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