Date: 12-05-2014

Case Style: Arvita M. Coleman v. Michael Bland

Case Number: 0-1326

Judge: Lambert

Court: Florida Court of Appeal, Fifth District on appeal from the Circuit Court, Orange County

Plaintiff's Attorney: Carlton Pierce

Defendant's Attorney: Mike Jones, Eric Bensen and Cynthia Winter, of The Wheelock Law Firm, LLC, Orlando, for Appellee.

Description: Pursuant to Florida Rule of Appellate Procedure 9.400(c), Arvita M. Coleman
(“Former Wife”) seeks review of a trial court order that she contends awarded her
attorney’s fees, but denied her motion for taxation of appellate costs.
Former Wife previously appealed the final judgment, later amended, dissolving
her marriage to Michael Bland (“Former Husband”). At that time, we found no reversible
2
error as to any of the issues raised, except as to whether any part of Former Husband’s
pension was a marital asset. Coleman v. Bland, 73 So. 3d 795, 795 (Fla. 5th DCA
2011). We determined that the record showed that a small portion of the pension was
earned during the marriage and should be classified as a marital asset; therefore, we
remanded as to only that issue for the court to make proper findings as to the
disposition of Former Husband’s pension. Id. at 796. We separately entered an order
granting Former Wife’s motion for appellate attorney’s fees conditioned upon the trial
court finding need of Former Wife and commensurate ability to pay of Former Husband,
and remanded the case to the trial court to assess the amount of the award, if any.
Pursuant to Florida Rule of Appellate Procedure 9.400(a), Former Wife then
timely filed a motion to tax appellate costs. She also separately filed a motion in the trial
court seeking an award of temporary attorney’s fees needed to litigate the issue on
remand regarding the Former Husband’s pension. The trial court held an evidentiary
hearing on all issues, and entered an order, which provided in pertinent part:
2. The Former Husband shall pay the Former Wife the sum
of Five Thousand Dollars ($5,000) for and as a contribution
toward the Former Wife’s appellate attorney’s fees and costs
and post-judgment non-appellate attorney’s fees and costs.
3. Said $5,000 shall be paid at the rate of Five Hundred
Dollars ($500) per month beginning September 29, 2014.
In the instant case, Former Wife contends the trial court erred in not awarding her
the full amount of her appellate attorney’s fees and in denying her request for appellate
costs.1 However, because the trial court failed to specify in its order whether the $5000
1 “[T]he correct method of seeking review of an order on appellate costs or
attorney’s fees is to file a motion for review in the appellate court in the proceeding that
was the subject of the award, within 30 days of rendition of the order in the lower
3
award applied to appellate attorney’s fees, appellate costs, or post-mandate attorney’s
fees at the trial court level, we are precluded from meaningful review of the award. See
Altamonte Hitch & Trailer Serv., Inc. v. U-Haul Co. of E. Fla., 483 So. 2d 852, 854 (Fla.
5th DCA 1986) (stating that “we can undertake no meaningful review of the sums
awarded because the lower court failed to stipulate in its order what amounts awarded
pertain to appellate fees and costs as opposed to trial fees and costs”). Accordingly, we
remand this cause to the trial court for the purpose of apportioning attorney’s fees
and/or costs awarded between appellate and trial work.2

* * *

tribunal.” Pellar v. Granger Asphalt Paving, Inc., 687 So. 2d 282, 284 (Fla. 1st DCA
1997).
2 We remind the trial court that if it awards appellate attorney’s fees, there should
be specific findings as to the reasonable number of hours expended and the reasonable
hourly rate. Furthermore, Florida Rule of Appellate Procedure 9.400(a) permits
appellate costs to be taxed in favor of the “prevailing party” unless the court orders
otherwise. Therefore, in determining whether to award appellate costs, the trial court
must decide whether Former Wife was the “prevailing party” on the primary appeal.
See, e.g., Markin v. Markin, 953 So. 2d 13, 15 (Fla. 4th DCA 2007) (reversing award of
appellate costs in favor of former husband who prevailed on an issue, but not “the
significant issues” on appeal).

Outcome: REMANDED

Plaintiff's Experts:

Defendant's Experts:

Comments: