Dissolution of marriage — Attorney’s fees — Where marital settlement agreement included a “defaulting party” provision for fee-shifting in post-judgment proceedings, trial court did not abuse discretion in awarding former husband attorney’s fees and costs incurred in connection with former wife’s numerous unsuccessful post-judgment claims and motions — Fact that some of former wife’s claims were termed “frivolous” or “vexatious” in final order does not transform it into an order awarding statutory or common law sanctions

PAULA L. QUIGLEY, Appellant, v. WILLIAM W. CULBERTSON, Appellee. 3rd District. Case No. 3D19-28. L.T. Case No. 13-7073. September 18, 2019. An Appeal from the Circuit Court for Miami-Dade County, George A. Sarduy, Judge. Counsel: EPGD Attorneys at Law, P.A., and Oscar A. Gomez, for appellant. Raquel A. Rodriguez; Ross & Girten, and Lauri Waldman Ross and Theresa L. Girten, for appellee.

(Before SALTER, LOGUE and HENDON, JJ.)

(PER CURIAM.) The former wife, Ms. Quigley, appeals a final order awarding her former husband, Mr. Culbertson, a substantial award for attorney’s fees and costs incurred over a two and one-half year period (February 2016 through August 2018). The attorney’s fees and costs were incurred in connection with numerous post-judgment claims and motions.

The parties entered into a mediated marital settlement agreement (“MSA”) in May 2014, which was adopted and ratified in a final judgment dissolving the marriage. The MSA expressly provided that its terms would survive the final judgment of dissolution. In that final judgment, the trial court reserved jurisdiction to enforce the terms of the MSA. Paragraph 26 of the MSA included a “defaulting party” provision for fee-shifting in post-judgment proceedings.

The trial court conducted a thorough hearing on the former husband’s motion for fees and costs and signed an order detailing the evidence supporting the award. The crux of the former wife’s appeal involves the trial court’s use of the term “frivolous and vexatious litigation” in describing the former wife’s many post-judgment motions and claims, none of which were successful. The former wife contends that the trial court attempted to invoke its “inherent authority” to award fees as a sanction, and that the resulting order lacked findings to support such a finding.

The former husband’s motion for attorney’s fees and costs was expressly grounded upon section 61.16, Florida Statutes (2018) and the factors enunciated in Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997). The requirements for an award of attorney’s fees and costs under those authorities include the financial resources of the parties as well as a consideration of the merits of the parties’ positions. See Rosen, 696 So. 2d at 699-700.

The record evidence of the parties’ financial resources included financial affidavits, business checking account statements for the former wife’s business, the former wife’s portfolio account statements, and the former wife’s retirement savings statement. The record also contains evidence regarding the former husband’s income and assets, as the former wife and her counsel had thoroughly investigated whether the former husband had any interest in patents, whether his University of Miami salary had materially increased since the MSA, and whether the husband had included certain stock options in his prior disclosure.

We review the trial court’s assessment of the evidence and ruling on the motion for attorney’s fees under the abuse of discretion standard. Spano v. Bruce, 62 So. 3d 2, 6 (Fla. 3d DCA 2011). The fee award must be supported by competent, substantial evidence, and it was in this case. See Viscito v. Viscito, 225 So. 3d 959, 962 (Fla. 3d DCA 2017).¹

The fact that one or more of the former wife’s claims were termed “frivolous” or “vexatious” in the final order does not transform it into an order awarding statutory or common law sanctions.² Under Rosen, the trial court may consider the merits of the parties’ positions as a pertinent aspect of the decision to award a fee.

For these reasons, the order on the former husband’s motion for attorney’s fees and costs is affirmed in all respects.

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¹The former wife did not challenge the hours incurred by the former husband’s attorney or the hourly rates charged. In addition, the fees and costs paid by the former wife (to attorneys and firms not representing her here) for her unsuccessful claims were not out of proportion to those incurred by the former husband in defending himself against the claims.

²The former husband’s motion did not characterize his motion as one seeking sanctions or a determination based on contumacious conduct, nor did the trial court’s order use those terms or invoke an “inherent authority” to award the fees and costs.