DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ISABEL ALVAREZ,
Appellant,
v.
SANDER ANDRES SALAZAR,
Appellee.
No. 4D20-1363
[February 9, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael Rothschild, Judge; L.T. Case No. FMCE18-
003835.
Susan R. Brown of Susan R. Brown, P.A., Plantation, and John B.
Agnetti of Hoffman, Larin & Agnetti, P.A., Miami, for appellant.
Meaghan K. Marro of Marro Law, P.A., Plantation, for appellee.
KLINGENSMITH, J.
Isabel Alvarez (“Former Wife”) appeals the trial court’s final judgment
dissolving her marriage with Sander Andres Salazar (“Former Husband”).
Although Former Wife raised several issues on appeal, we find merit in
only two: the trial court’s award of attorney’s fees to Former Husband
based on Former Wife’s alleged vexatious litigation and an error in
calculating the child support obligation.
In multiple filings, Former Wife alleged that Former Husband suffered
from substance abuse issues. Specifically, she claimed Former Husband’s
excessive drinking, among other things, led to the end of the marriage.
These allegations served as the basis for Former Wife’s request for majority
timesharing of their minor child and for Former Husband to have alcohol
monitoring for a year. Because of these claims, an expert conducted an
independent medical evaluation and found no indication that Former
Husband suffered from a substance abuse disorder.
After closing arguments following a five-day trial on the dissolution
petition, the trial court stated that it did not think Former Husband had a
substance abuse problem requiring ongoing testing or supervised
visitation and that the evidence failed to connect Former Husband’s
drinking with activities that would place the minor child in danger. The
court’s written final judgment ordered shared parental responsibility and
equal timesharing in the best interest of the minor child. The final
judgment also noted that Former Wife acted in bad faith by making
unilateral decisions regarding the minor child’s medical care and engaged
in vexatious litigation by pursuing frivolous and non-meritorious claims.
Due to Former Wife’s alleged vexatious litigation, the court awarded
Former Husband attorney’s fees under section 61.16, Florida Statutes
(2020), and Rosen v. Rosen,
696 So. 2d 697 (Fla. 1997), but made no
findings regarding the parties’ ability to pay and need.
Given Former Wife’s gross income and Former Husband’s imputed
income, the trial court found that Former Wife had a monthly child
support obligation of $275.00. The trial court also found that Former
Husband had paid $1,277.50 in supervised visitation fees, $4,840.00 for
a parenting course, and $2,400.00 in voluntary child support to Former
Wife. Therefore, Former Husband received a credit for all retroactive child
support, totaling $8,517.50, with all supervision costs offset against any
retroactive child support payments awarded in the final judgment.
Former Wife moved for rehearing and, after the original trial judge left
the case, the successor judge denied the motion in part and granted a
limited rehearing on recalculation of child support. The court credited
Former Wife with monthly expenses of $728.00 in childcare and $115.00
in medical insurance, thereby reducing her monthly child support
obligation from $275.00 to $77.00 to be paid going forward from the date
of the amended judgment. This appeal follows.
Attorney’s Fee Award
“Orders on attorneys’ fees are reviewed for an abuse of discretion.”
Henry v. Henry,
191 So. 3d 995, 999 (Fla. 4th DCA 2016). “However, to
the extent that a trial court’s order on fees is based on its interpretation of
the law, the standard of review is de novo.” Hahamovitch v. Hahamovitch,
133 So. 3d 1020, 1022 (Fla. 4th DCA 2014).
In Rosen, the Florida Supreme Court held that section 61.16 allowed
the consideration of secondary 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 . . . ; and the existence and course of prior or pending litigation.”
696 So. 2d at 700. Although the trial court may consider secondary
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factors, it must also make findings as to the parties’ respective need and
ability to pay to award fees under section 61.16. See Maio v. Clarke,
255
So. 3d 369, 372 (Fla. 4th DCA 2018) (finding Rosen fees were not permitted
as a sanction when the trial court failed to determine the receiving
spouse’s need); see also Hallac v. Hallac,
88 So. 3d 253, 259 (Fla. 4th DCA
2012) (finding that Rosen cannot “be applied to an award of attorney’s fees
in favor of the spouse with the greater financial ability to pay”).
“However, trial courts have the inherent authority to prevent vexatious
litigation by awarding fees without such findings.” Henry, 191 So. 3d at
999 (citation omitted). “Under the inequitable conduct doctrine, the trial
court may award attorney’s fees as a sanction where one party has
exhibited egregious conduct or acted in bad faith.” Hahamovitch,
133 So.
3d at 1025. “Such awards are rarely applicable and should be reserved
for extreme cases in which a party litigates vexatiously and in bad faith.”
Hallac,
88 So. 3d at 259. “If an award is made under this authority, the
trial court must make express findings of bad faith, including supporting
facts, which would justify the award.” Henry, 191 So. 3d at 999.
The trial court erred when it awarded Former Husband fees for Former
Wife’s allegedly vexatious litigation under Rosen. See Hahamovitch,
133
So. 3d at 1022. Although Rosen allows fees for overlitigation, the trial
court failed to make any findings regarding the parties’ ability to pay and
need, which are required to grant fees under section 61.16. See Henry,
191 So. 3d at 999. Without meeting this primary criterion, the trial court
could not award fees against a vexatious litigant under Rosen. See Maio,
255 So. 3d at 372.
The final judgment also failed to make the appropriate factual findings
that could support a vexatious litigation fee award under the inequitable
conduct doctrine. See Henry, 191 So. 3d at 999. The record shows the
trial court found that Former Wife acted in bad faith only by making
unilateral decisions regarding the minor child’s medical care. In sum, the
trial court did not make express findings that Former Wife litigated in bad
faith—only that some of her positions were unfounded. See Hallac,
88 So.
3d at 259. Additional factual findings were needed for us to ratify the
conclusion that Former Wife litigated vexatiously. See Hahamovitch,
133
So. 3d at 1025.
Child Support Award
“The standard of review for a child support award is abuse of
discretion.” Smith v. Loffredo-Smith,
230 So. 3d 898, 899 (Fla. 4th DCA
2017). “A trial court abuses its discretion when it fails to award retroactive
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support . . . when there is a need for child support and an ability to pay.”
Johnson v. Johnson,
297 So. 3d 700, 704 (Fla. 1st DCA 2020) (quoting
Leventhal v. Leventhal,
885 So. 2d 919, 920 (Fla. 3d DCA 2004)).
Retroactive child support may be awarded for a time up to two years
prior to the filing of the petition. See § 61.30(17), Fla. Stat. (2018).
“Further, a court may award retroactive child support where the child has
needs and the parent has the corresponding ability to pay.” Williams v.
Gonzalez,
294 So. 3d 941, 945 (Fla. 4th DCA 2020).
“[T]he trial court should normally treat the costs of supervision as part
of the child support calculations.” Moore v. Yahr,
192 So. 3d 544, 545
(Fla. 4th DCA 2016). Therefore, the trial court erred when it held that all
supervision costs should be offset against retroactive child support
payments in the final judgment. See Williams, 294 So. 3d at 945. Here,
the trial court should have treated the cost of supervision as part of the
child support calculation and only offset half of that amount when
awarding retroactive child support. See Moore, 192 So. 3d at 545.
Former Wife also argues that the trial court erred when it amended its
child support award to operate prospectively but did not correct it for the
three months between the issuance of the final judgment and the motion
for rehearing. We agree. The child support correction should have been
made retroactive to the date the final judgment was issued. See Nierenberg
v. Nierenberg,
758 So. 2d 1179, 1180 (Fla. 4th DCA 2000) (“When child
support is modified, retroactivity is the rule rather than the exception.”).
Conclusion
We reverse the trial court’s award of attorney’s fees to Former Husband
and reverse on the issue of the child support calculation. We remand for
the trial court to reconsider whether a basis exists for Former Husband’s
attorney’s fees award for vexatious litigation, and to correct the child
support calculation in accordance with this opinion. We affirm on all other
issues without comment.
Affirmed in part, reversed in part and remanded.
DAMOORGIAN and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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