Limitations on Attorney’s Fees in Post-Divorce Enforcement Proceedings

Hot off the press!

The First District Court of Appeal issued an opinion today in Kotzlarz v. Kotzlarz, No 1D18-4818, a post-divorce enforcement case out of Escambia County, Florida. The issue before the 1st DCA was whether the trial court could award attorney’s fees and costs to a former spouse under Chapter 61, Florida Statutes, in a post-divorce enforcement proceeding to collect on a money judgment arising out of an equalization payment ordered by the trial court.

In the underlying divorce proceeding, the former wife was awarded an equalization payment as part of the trial court’s equitable distribution scheme. After the initial order was entered, the former husband did not pay, and the trial court awarded the former wife a money judgment to collect on her equalization payment. She went through years of trying to collect on her money judgment to no avail. She then needed additional funds to pay for her attorney’s fees and costs and requested fees under Chapter 61. The trial court agreed and awarded the former wife fees under Section 61.16.

On appeal, the 1st DCA reversed. The 1st DCA ruled that Chapter 61 does not apply to a proceeding where a former spouse is trying to collect monies owed for property division. This is because a property division award can only be enforced through the remedies available between a creditor and a debtor.

I recently handled a similar case before the 1st DCA where I obtained a reversal for my client after he was found in contempt of court after he did not pay the former wife certain funds awarded to her from an investment account. See Schroll v. Schroll, 262 So. 3d 832 (Fla. 1st DCA 2018). We argued in that appeal that the trial court lacked authority to enforce the monetary judgment through its contempt power. The 1st DCA agreed with our position because the  former wife could only proceed through the remedies available between a creditor and debtor and the order did not involve alimony or child support.

Therefore, case law is clear that a dispute over property division cannot be enforced by contempt. Instead, the only post-judgment enforcement proceedings available under Chapter 61 are for alimony and child support awards.  Since the Kotzlarz case did not involve the enforcement of alimony or child support, the 1st DCA  found that the trial court had no basis on which to award attorney’s fees and costs under Chapter 61.

This is an important distinction to keep in mind when faced with a situation where one party is not complying with terms of a final judgment concerning property division. Divorce lawyers should also be cautious of this distinction when crafting marital settlement agreements, as it may be difficult and expensive to enforce if the other party decides to not comply.

Therese Felth McKenzie

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