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Successfully defending a family law dissolution agreement may not yield attorney’s fees

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Florida Supreme CourtParties in family law cases who successfully defend dissolution-related agreements are not entitled to attorney fees if those contracts allow fees only for enforcing the contract, according to the Supreme Court.

The court on October 7 ruled that F.S. §57.105(7) does not apply to such agreements. That statute converts unilateral fee awards into reciprocal awards.

The court, in a unanimous opinion written by Justice Jamie Grosshans, said the family law agreements in this case were not unilateral since either party could collect fees if they prevailed. The contracts did not provide fees for successfully defending a claim of violating the agreement.

The case involved a divorce where the husband and wife signed a consent custody and a property settlement and support agreement (PSA). The latter provided that if either party took action because of the other’s failure to follow the PSA, the party found to be in violation would pay the reasonable expenses of the other party including attorney fees.

The former husband filed a complaint alleging the former wife failed to comply with the PSA, which included a request for attorney fees. The former wife defended against the allegations and sought attorney fees for doing so.

Eventually, a magistrate and then the judge found the wife had not violated the agreement, but rejected her claim for attorney fees because the PSA only provided fees “against ‘the party who is found to be in violation of th[e] Agreement.’”

Both parties appealed and the Third District Court of Appeal upheld the trial court ruling, except it held the former wife was entitled to attorney fees. The DCA reasoned that F.S. §57.105(7) “amends by statute all contracts with prevailing party fee provisions to make them reciprocal” and “[t]he award is mandatory, once the lower court determines a party has prevailed.”

The former husband appealed to the Supreme Court, arguing the Third DCA opinion conflicted with Sacket v. Sacket, 115 So. 3d 1069 (Fla. 4th DCA 2013).

The Supreme Court agreed with the former husband. Grosshans wrote that F.S. §57.105(7), “only applies to a provision that confers on a party the right to attorney’s fees while not affording a comparable right to the other party,” adding in another recent action the court characterized those as “unilateral” provisions.

“The attorney’s fee provision in this case, however, is not unilateral. The provision does not confer the right to fees on one identifiable contracting party to the exclusion of the other party. Rather, it entitles ‘either party’ to an award of fees upon demonstrating that the other party violated the PSA. Thus, the provision grants both parties precisely the same contractual right to attorney’s fees,” Grosshans wrote. “Put differently, neither party has a greater right to attorney’s fees than the other; nor is one party favored over the other.”

To apply F.S. §57.105(7) in this case, she added, would confer on the former wife the right to collect fees without showing a violation of the PSA.

“Section 57.105(7) simply does not go that far: it levels the playing field, but does not expand it,” Grosshans concluded.

The court acted in Levy v. Levy, Case No. SC20-1195.

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