Are Attorney’s Fees Analyzed Differently in Paternity Cases?
On December 30, 2022, the First District Court of Appeal issued an interesting opinion in the case of Jessup v. Werner, which suggests that attorney’s fees may be analyzed differently in paternity cases than in divorce cases.
In this case, the parties had never lived together and were never married. They had one child together. The mother resided in Florida and had been the primary caretaker of the child since his birth in 2018. The father resided in South Carolina. The father filed a petition to establish paternity and for related relief. The trial court awarded the mother majority timesharing, implemented a long-distance parenting plan, and ordered the father to pay child support. All of these rulings made by the trial court were upheld on appeal.
However, the father also appealed the trial court’s determination that the father would have to pay the mother for half of her attorney’s fees and costs. The trial court had not yet ruled on the final amount of attorney’s fees and costs to be paid by the father at the time the father appealed.
Though the First District Court of Appeal found it did not have authority to review the trial court’s conclusion regarding fees because it was not yet a final determination with a final amount of fees and costs to be paid by the father, the Court did weigh in on the trial court’s suggestion that the father would have to pay half of the mother’s attorney’s fees and costs. The Court’s analysis is important for practitioners and parties who find themselves involved in a paternity action.
The First District Court of Appeal referenced the trial court’s emphasis on the parties’ relative financial means. The trial court found that the mother was operating at a monthly deficit, had no significant liquid assets from which to pay attorney’s fees, and had to borrow money from her father to pay her fees. The trial court also found that the father had a superior earning ability, future earning capacity, and access to funds. The trial court concluded that the mother was entitled to “reimbursement” from the father for her fees based on this comparison.
The First District Court of Appeal challenged the trial court’s use of the term, “reimbursement.” According to the First District Court of Appeal, the paternity statute is not a reimbursement statute. In a paternity action, a trial court “may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending” the proceeding. Fla. Stat. 742.045. This language is the same as that found in Fla. Stat. 61.16, the purpose of which, “is to ensure that both parties will have a similar ability to obtain competent legal counsel.” Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997). The Court noted that as part of determining a fee request under one of these statues, a trial court must consider whether the requesting party has a lack of access to money or other assets that precludes him or her from hiring counsel to assist in ably seeing the proceeding through to its conclusion. The statute uses the phrase “from time to time,” which indicates the interlocutory and ongoing nature of the consideration. This approach is different from cases involving a typical prevailing-party fee provision, where a trial court would not consider a fee request until after a final judgment is rendered.
The First District Court of Appeal noted that the trial court did not make an interim order regarding attorney’s fees during the pendency of the case. Instead, it preliminarily referenced this “reimbursement” for fees in its final judgment. The First District Court of Appeal challenges this, stating, “Section 742.045, though, is not a reimbursement provision, like a prevailing-party provision might be. Instead, the terms of section 742.045, as characterized by the supreme court, required the trial court to consider whether the mother needed money from the father to hire and retain competent counsel to represent her in the proceeding.” It further notes that the trial court failed to include this type of assessment in the final paternity judgment.
Most importantly, the First District Court of Appeal went on to emphasize that the evidence at the trial court level revealed the mother’s dad had loaned her money to hire a lawyer. The Court proceeded to make an important statement that is different from other opinions we have seen on attorney’s fees in family cases. The Court stated, “a paternity proceeding is not a dissolution proceeding, and the ‘loan’ from the mother’s dad counts as a financial resource that the trial court should account for when determining the mother’s need.” There is case law that states that loans from family should not be considered in determining a party’s need for attorney’s fees, so this language is a significant shift from prior case law. The Court is emphasizing that this applies only in paternity proceedings, not in dissolution of marriage proceedings.
This case now implies a necessity of bringing motions for temporary attorney’s fees and costs in paternity actions as early as possible, and prior to any loan being made by family. If a loan must be made by family to initially retain an attorney, a promissory note should be provided and a hearing on the motion for temporary attorney’s fees and costs should be set promptly, knowing these loans could now potentially be considered a financial resource of the needy party. Temporary attorney’s fees and costs should continue to be pursued throughout the pendency of the paternity action and not simply at the end as a reimbursement.
It will be interesting to see whether conflict is certified as this case differs from prior rulings in other district courts of appeal.
