THEODORE A. AVELLONE v. SUSAN E. AVELLONE
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
THEODORE A. AVELLONE,
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
v.
CASE NO. 1D06-5219
SUSAN E. AVELLONE
SUSAN E. RICE,
n/k/a
Appellee.
___________________________/
Opinion filed October 15, 2007.
An appeal from the Circuit Court for Leon County.
John E. Crusoe, Judge.
Theodore A. Avellone, pro se, Appellant.
Joshua D. Zelman, Patricia M. Durst, and Susan Harnden of Durst, Harnden &
Zelman, PL, Tallahassee, for Appellee.
PER CURIAM.
Pursuant to Florida Rule of Appellate Procedure 9.400(c), we review the trial
court’s Order on Clarification of Attorney’s Fees. In Avellone v. Avellone, 951
So. 2d 80 (Fla. 1st DCA 2007), we affirmed the trial court’s order denying the motion
for contempt and to enforce the Marital Settlement Agreement filed by the former
husband and granted the former wife’s motion for appellate attorney’s fees. The trial
court found that fifty hours was a reasonable amount of time to spend representing the
former wife on appeal and that $200 per hour was a reasonable hourly fee, for a total
reasonable fee of $10,000. The trial court then subtracted the $4,000 retainer paid by
the former wife from the $10,000 and ordered that the former husband pay the sum
of $6,000 to the former wife’s attorney. The former wife sought review of the order.
Because we were unable to discern from the face of the trial court’s order why it
deducted the $4,000 retainer, we reversed the order and remanded for further
proceedings. See Avellone v. Avellone, 960 So. 2d 910 (Fla. 1st DCA 2007). On
remand, the trial court found that the former wife had the ability to pay the $4,000
retainer, notwithstanding the fact that she was the prevailing party. The former wife
has now sought review of this order.
The parties’ Marital Settlement Agreement provides in part, “In the event either
party to this agreement incurs attorney’s fees and costs, in the enforcement of
obligations created by this Agreement, the prevailing party shall be entitled to recover
reasonable attorney’s fees and costs.” Notwithstanding the fact that the trial court
found $10,000 to be a reasonable fee for the services of the former wife’s counsel on
appeal, it determined that the former wife was entitled to only $6,000 based on her
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ability to pay the $4,000 retainer. This was error. Although section 61.16(1), Florida
Statutes (2006), provides that a court may, after considering the financial resources
of both parties, order a party to pay a reasonable amount for attorney’s fees to the
other party in dissolution of marriage, support, and custody cases, this statute and its
focus on the parties’ financial resources is irrelevant in this case given the parties’
agreement. See Ulbrich v. Coolidge, 935 So. 2d 607, 608 (Fla. 4th DCA 2006) (“[I]n
cases involving a marital settlement agreement with a prevailing party provision,
section 61.16 . . . cannot be used as a basis for an award of attorney’s fees.”); Dean v.
Dean, 655 So. 2d 243, 244 (Fla. 3d DCA 1995) (“We agree with the husband that the
right to attorney’s fees is governed only by the contract and that section 61.16 . . . and
the conditions to an award under that statute are therefore irrelevant.”); see also Mott
v. Mott, 800 So. 2d 331, 334 (Fla. 2d DCA 2001) (“To the extent that on remand the
trial court determines that certain fees and costs are not recoverable by Ms. Mott under
the prevailing party provision of the marital settlement agreement, the trial court must
then consider whether those fees and costs would be recoverable . . . under the other
terms of the agreement or under section 61.16 . . . .”).
Accordingly, we reverse the trial court’s Order on Clarification of Attorney’s
Fees and remand with instructions to award the former wife $10,000 in appellate
attorney’s fees pursuant to the Marital Settlement Agreement. We deny the former
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wife’s request for attorney’s fees for litigating the amount of fees.
REVERSED and REMANDED with instructions.
DAVIS, PADOVANO, and HAWKES, JJ., CONCUR.
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