Attorneys’ Fees on Appeal in Divorce Cases
Attorneys’ fees on appeal can be sought both while the appeal is pending and at the conclusion of the appeal. Florida Rules of Appellate Procedure, Rule 9.400(b) provides for an award of attorneys’ fees at the conclusion of an appeal. These fees are commonly referred to as final appellate fees. However, Rule 9.600(c) and Florida Statute Section 61.16 provide that attorneys’ fees are available, while the appeal is also still pending. Meaning that you are able to recover attorneys’ fees prior to the outcome of the appeal.
The purpose of providing for appellate attorneys’ fees is to put both sides on equal footing and allow each side to retain competent legal counsel, regardless of his or her financial means. If one spouse does not have the financial ability to hire competent legal counsel, the court may order a contribution of attorneys’ fees towards the spouse who does not have the ability to pay his or her own attorneys’ fees. In doing so, the court must determine the requesting party’s need and the paying party’s ability to pay the legal fees requested.
Florida Statutes Section 61.16 provides that both parties in a divorce should “have similar ability to secure competent legal counsel” and states that the trial courts have continuing jurisdiction to make temporary attorneys’ fees awards both during trial and on appeal. When determining temporary fees for appeal, the trial court determines whether a party is entitled to temporary attorneys’ fees on appeal and the amount of such fees. However, the appellate court may review this determination by motion, which means that ultimately, the appellate court determines entitlement to fees.
If a party is seeking temporary attorneys’ fees for an appeal, he or she must file a motion before the appeal is concluded. However, if motion is filed late in the appellate process, it may be denied as a decision on the merits will be rendered shortly. The prudent course is to file it early in the appellate process to secure the funds for appellate counsel to be retained. In the event that temporary fees are denied, final appellate fees may still be an option.
In the event that temporary fees are followed by an award of final attorneys’ fees, the trial court must adjust the amount of the final fee to account for the temporary fees already paid.