The Florida Bar

Florida Bar Journal

Funding Your Appeal: Temporary Appellate Fees in Dissolution Cases

Appellate Practice

So your client has received an unfavorable judgment in a dissolution of marriage case. Now what do you do? Well, you appeal of course! An award of final attorneys’ fees from the appellate court is available pursuant to Fla. R. App. P. 9.400(b) at the conclusion of an appeal. However, if your client is at a disadvantage economically, being able to obtain fees to prosecute or defend the appeal while it is pending, rather than at its conclusion, may make the difference in whether your client has funds to pursue the appeal. Under Rule 9.600(c) and F.S. §61.16, appellate fees are available while the appeal is still pending. These fees are known as temporary appellate attorneys’ fees.

This article discusses the relationship between Rule 9.400(b) and Rule 9.600(c)(1) — that is, the relationship between final attorneys’ fees and temporary attorneys’ fees. It will clarify when a Rule 9.600(c)(1) motion for temporary fees is appropriate as opposed to when a Rule 9.400(b) motion for final fees is appropriate.

Understanding Temporary Appellate Attorneys’ Fees: The Four Cs
Understanding when and how to move for temporary and final appellate attorneys’ fees can be tricky. The process is easier if you remember the “four Cs”: 1) competent counsel; 2) continuing jurisdiction; 3) concluding jurisdiction; and 4) chicken or the egg.

Competent Counsel — The purpose of both final and temporary attorneys’ fees is to put both parties in a dissolution proceeding on equal footing. It is rooted in the equitable nature of dissolution proceedings and the need for both sides to have access to competent counsel regardless of financial means.1 According to “the equitable considerations underlying our dissolution law” in Florida, a trial court must “mitigate the harm an impecunious spouse would suffer where the other spouse’s financial advantage accords him or her an unfair ability to obtain legal assistance.”2 However, it would be an abuse of discretion for the court to require one party to pay the other party’s fees if the parties were already on equal footing.3 When considering an award of either final or temporary fees, the court will determine each spouse’s need and ability to pay.4

Continuing Jurisdiction — F.S. §61.16 provides, in pertinent part, as follows: “The trial court shall have continuing jurisdiction to make temporary attorney’s fees and costs awards reasonably necessary to prosecute or defend an appeal on the same basis and criteria as though the matter were pending before it at the trial level.”5 Similarly, Rule 9.600(c)(1) provides that in family law cases, “[t]he lower tribunal shall retain jurisdiction to enter and enforce orders awarding…temporary attorneys’ fees and costs reasonably necessary to prosecute or defend an appeal, or other awards necessary to protect the welfare and rights of any party pending appeal.”6 Rule 9.600(c)(1), therefore, extends jurisdiction to the trial court to award temporary attorneys’ fees when normally a trial court’s jurisdiction would end upon the filing of a notice of appeal. Thus, an application for temporary fees under Rule 9.600(c)(1) must be brought before the trial court.

In this extended jurisdiction, trial courts have broad discretion in granting temporary appellate attorneys’ fees.7 Appellate courts are reluctant to interfere with this discretion unless there are compelling circumstances.8 However, the appellate court does retain a “supervisory role because it reviews any such order by motion filed in the pending appeal.”9 In addition to reviewing Rule 9.600(c)(1) fee awards, the appellate court also determines the entitlement a party may have for final appellate attorneys’ fees under Rule 9.400(b). After making the initial ruling on entitlement, the issue is remanded to the trial court for a final determination of the amount of the fees. The final determination of the trial court is then subject to appeal and review by the appellate court.

The party seeking an award of appellate fees has the burden of proving the reasonableness and necessity of the fees.10 If the party requesting an order for payment of attorneys’ fees does not establish that the fee is reasonable, that the requesting party is unable to pay it, and that the opposing party is able to pay, the request will be denied.11

Concluding Jurisdiction — Although the trial court is granted continuing jurisdiction under §61.16 and Rule 9.600(c)(1), there is inevitably a point when the jurisdiction comes to an end. The language of §61.16 and Rule 9.600(c)(1) is not clear as to when this “continuing jurisdiction” ends, or when a motion under Rule 9.600(c)(1) must be filed. However, Florida caselaw establishes that you may preserve your client’s right to seek temporary fees by filing a Rule 9.600(c)(1) motion with the trial court while the appeal is still pending — that is, before the appeal has concluded. An appeal concludes when the opinion and/or mandate are issued.12

Once the appeal is concluded, your client may no longer rely on Rule 9.600(c)(1) at the trial court level to apply for an award of temporary appellate attorneys’ fees.

Both the statute and the rule are designed to maintain jurisdiction in the [trial] court during the existence of an appeal. Once the appeal is no longer pending, neither the statute nor the rule gives any power to the circuit court to award temporary appellate attorneys’ fees. Rather, the entitlement to appellate attorneys’ fees after the conclusion of the appeal must have been established by rule 9.400(b).13

The appellate court may grant preliminary entitlement to appellate attorneys’ fees under Rule 9.400(b). A party seeking final appellate fees under Rule 9.400(b) must file a motion for fees prior to the deadline to file the reply brief. Rule 9.400(b) states: “[A] motion for attorneys’ fees may be served not later than the time for service of the reply brief and shall state the grounds on which recovery is sought. The [appellate court’s] assessment of attorneys’ fees may be remanded to the lower tribunal. If attorneys’ fees are assessed by the [appellate] court, the lower tribunal may enforce the payment.”14

The final amount of the fees, which the trial court determines, is based on the “need and ability to pay” analysis.15

Chicken or the Egg?
As you might have guessed by now, asking which comes first, a Rule 9.400(b) motion or a Rule 9.600(c)(1) motion, is sort of a chicken or egg question. In fact, it is best to file a Rule 9.400(b) concurrently with a Rule 9.600(c)(1) motion at the beginning of the appellate process.16 In Kasm v. Lynnel, 975 So. 2d 560 (Fla. 2d DCA 2008), the appellate court had time to review the motion for temporary appellate fees before the conclusion of the appeal, finding there was no longer any need for the temporary fees “pending appeal.” However, the moving party had not moved for final fees under Rule 9.400(b) and was, therefore, not able to recover fees at all.17

It is not clear whether a motion for temporary appellate fees in the lower court must always be followed by motion for final fees in the appellate court. However, the appellate court ultimately establishes entitlement to the fees. “An order awarding temporary attorneys’ fees [under Rule 9.600(c)]…is generally followed by a final determination of fees at the end of the litigation [under Rule 9.400(b)]….This results in a final, i.e., permanent award of circuit court attorneys’ fees that properly accounts for earlier temporary payments and adjusts them if necessary.”18

If your client can show a need, temporary appellate fees are available in dissolution cases while the appeal is still pending. Just remember the “four Cs” and make sure to file both a Rule 9.600(c)(1) motion and a 9.400(b) motion within the time limits discussed above.

1 See Fla. Stat. §61.16 (calls for both parties in a dissolution proceeding to “have similar ability to secure competent legal counsel”).

2 Nichols v. Nichols, 519 So. 2d 620, 621 (Fla. 1988).

3 Trespalacios v. Trespalacios, 978 So. 2d 858, 861 (Fla. 2d DCA 2008).

4 Pedraja v. Garcia, 667 So. 2d 461, 463 (Fla. 4th DCA 1996).

5 Fla. Stat. §61.16 (2016) (emphasis added).

6 Fla. R. App. P. 9.600(c)(1) (emphasis added).

7 Young v. Young, 898 So. 2d 1076, 1077 (Fla. 3d DCA 2005).

8 Fla. R. App. P. 9.600(c)(1).

9 Kasm v. Lynnel, 975 So. 2d 560, 563-64 (Fla. 2d DCA 2008); see also Fla. R. App. P. 9.600(c)(3).

10 Young,898 So. 2d at 1077.

11 Kasm,975 So. 2d at 564.

12 Id.

13 Id. at 563-64.

14 Id.

15 See Tremblay v. Tremblay, 687 So. 2d 313, 314 n. 1 (Fla. 4th DCA 1997).

16 See Kasm, 975 So. 2d at 565 n. 1 (“[A] practitioner seeking temporary appellate fees might be wise to…not only seek[] the award by motion directed to the circuit court as permitted under Rule 9.600(c) but also [to secure] entitlement to ‘final’ appellate fees by filing a motion with the appellate court pursuant to rule 9.400(b).”).

17 Id.

18 Id. at 564.

Genny Castellanos is a litigation and appellate attorney at her law firm and founded De Novo Review, LLC. De Novo Review provides experienced associates when law firms need assistance with complex cases, case strategy, discovery, trial preparation, and appellate support.

Benjamin Goodman received a J.D. and M.A. from the University of Florida in 2012. While working as a law clerk for De Novo Review, LLC, he founded a nonprofit that provides legal training and advocacy to rural indigenous communities in Latin America.

This column is submitted on behalf of the Appellate Practice Section, Duane Daiker, chair, and Brandon Christian and Thomas Seider, editors.

Appellate Practice