Florida/Georgia Personal Injury & Workers Compensation

...In effect the issue was determined without notice to the father that, in spite of the mutual understanding of the parties, it would actually be determined. *971 We note this was a paternity case, not a dissolution of marriage proceeding. As a paternity case, the right to fees resides in section 742.045, not section 61.16. Nevertheless, because section 742.045 is nearly identical to the text and function of section 61.16, Rosen applies to the consideration of fees under section 742.045....

...the conclusion of the matter, the amount of which would be set by the firm "taking into consideration the results achieved, the complexity of the matter and the other permissible criteria recognized by the Rules Regulating the Florida Bar." [2] See § 742.045, Fla....

...The mother moved for temporary appellate attorney's fees pending appeal which the court granted. The Fifth District Court of Appeal concluded that there was no statutory support for an award of temporary appellate fees to the mother. In a footnote, the court noted that "[s]ection 742.045 of the paternity statute does not authorize appellate fees. It is almost identical to section 61.16, but for the conspicuous absence of authority to award appellate fees." 727 So.2d at 387 n. 3. Thus section 742.045 could not be "bootstrapped" into supporting an award of temporary appellate fees....

...onditions upon the receipt or payment of such awards in order to protect the interests of the parties during the appeal. (3) Review of orders entered pursuant to this subdivision shall be by motion filed in the court within 30 days of rendition. [3] Section 742.045 of the paternity statute does not authorize appellate fees....

...ovision of a statute or of a contract entered into after October 1, 1977, providing for the payment of attorney's fees to the prevailing party shall be construed to include the payment of attorney's fees to the prevailing party on appeal." Obviously section 742.045 is not a prevailing party statute, but rather is based on need and ability to pay. Thus, the provision for fees in section 742.045 cannot be bootstrapped into supporting an award of temporary appellate fees....

...." 2 Sutherland's Statutory Construction, Sec. 366, p. 701. Van Pelt v. Hilliard, 75 Fla. 792, 798-99, 78 So. 693, 694-95 (1918). I respectfully dissent. NOTES [1] We note that subsequent to the decision below and to the date of oral argument before this Court the legislature created section 742.045, Florida Statutes (1991), which specifically authorizes an award of attorney's fees in any proceeding under chapter 742, including enforcement and modification proceedings....

...The court found that Zanone had the ability to pay for ten hours of work at $150 per hour and entered judgment accordingly. The trial court did not cite any specific statutory support for its award of fees; nevertheless, we conclude that the award was made pursuant to either section 57.105 or section 742.045....

...4th DCA 2002), "[w]hile the father's conduct may have been unreasonable in some respects, and apparently vexatious, it did not qualify for fees under section 57.105." If the fee award was not made pursuant to section 57.105, it alternatively may have been made pursuant to section 742.045, which is the statute that authorizes fees in paternity actions. Section 742.045 provides in pertinent part, "The 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 any proceeding under this chapter, including enforcement and modification proceedings." (Emphasis added). In order to award fees under *1271 section 742.045, the trial court must find that the party has the ability to pay those fees. See Starkey v. Linn, 727 So.2d 386, 388 n. 3 (Fla. 5th DCA 1999) ("Obviously section 742.045 is not a prevailing party statute, but rather is based on need and ability to pay.")....

...he length and scope of the litigation and the parties' behavior during litigation when awarding fees in dissolution cases. Rosen is equally applicable to paternity actions. Guerin, 819 So.2d at 971 ("As a paternity case, the right to fees resides in section 742.045, not section 61.16. Nevertheless, because section 742.045 is nearly identical to the text and function of section 61.16, Rosen applies to the consideration of fees under section 742.045."). Zanone's "over-litigation" of his paternity suit would qualify as a factor to be considered in awarding fees under section 742.045....

...at 871. No such findings were made in this case. Because there was no basis for concluding that Zanone had the ability to pay, and indeed the court's own comments refute any such conclusion, the fee award in the instant case cannot be upheld under section 742.045....

...DOR timely filed a notice of appeal, but later filed a notice voluntarily dismissing its appeal. Three months later, DOR filed a motion to voluntarily dismiss the paternity action without prejudice, and the trial court granted the motion. In response to the voluntary dismissal, Yambert filed a motion seeking an award of section 742.045 attorney's fees....

...The motion also requested an award of section 57.105 attorney's fees. The matter proceeded to a hearing on Yambert's motion to dismiss wherein he argued that the first paternity lawsuit (which was still pending before a different judge on Yambert's motion for section 742.045 attorney's fees) was frivolous because it had sought a paternity adjudication when such an adjudication had already been entered in the dependency proceeding....

...s acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney's fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest. [2] Section 742.045 of the Florida Statutes (2001) authorizes the award of attorney's fees in paternity actions as follows: 742.045....

...ulated the child support ar-rearage, we reverse and remand for the circuit court to correct the error. We also remand the mother, S.D.C.’s, motion for appellate attorneys’ fees for the circuit court to consider her entitlement, and amount, under section 742.045, Florida Statutes (2012)....

...Because the imposition of the extra $1000 is not supported by competent, substantial evidence, we reverse and remand for the court to correct its mathematical error. We now turn to S.D.C.’s timely filed motion for appellate attorneys’ fees and costs. Section 742.045 does not expressly authorize an award of appellate attorneys’ fees in paternity actions. But, when section 742.045 was enacted in 1991, it mirrored the attorneys’ fees provision of section 61.16, Florida Statutes (1991)....

...In 1994, the legislature codified this case law by amending chapter 61 to be consistent therewith. See Ch. 94-169, § 1, at 1039, Laws of Fla. With or without the amendment it is apparent to us that this same case law, for the sake of consistency and logic, should be applied to allow appellate fees under section 742.045, and we now so hold....

...in custody disputes.”). For reasons further outlined below, we certify conflict with sister district court holdings to the contrary. In Starkey v. Linn, 727 So.2d 386 , 388 n. 3 (Fla. 5th DCA 1999), the Fifth District based its determination that section 742.045 does not provide for appellate attorney’s fees on the “conspicuous absence of authority to award appellate fees” when compared with section 61.16....

...decisions on the subject concerning which it subsequently enacts a statute.” Seagrave v. State, 802 So.2d 281, 290 (Fla.2001) (quoting Wood v. Fraser, 677 So.2d 15, 18 (Fla. 2d DCA 1996)) (internal quotation marks omitted). Therefore, in enacting section 742.045, the legislature is presumed to have known and approved of the judicial construction of section 61.16 to include appellate attorneys fees....

...Bittner, — So.3d -, 2012 WL 5232293 , 37 Fla. L. Weekly D2519 (Fla. 4th DCA Oct. 24, 2012) (War *983 ner, J., concurring). Had the legislature intended the statutes to be interpreted differently, it would have expressed such an intent in enacting section 742.045; instead it chose to mirror the language of section 61.16. Hence, we hold that an award of appellate attorneys’ fees may be obtained under section 742.045....

...The appellee moved for attorney’s fees in this paternity action. We grant the ap-pellee’s motion, and as fashioned below, we recede from Gilbertson v. Boggs, 743 So.2d 123 (Fla. 4th DCA 1999). We now apply the plain meaning of the first sentence of section 742.045, Florida Statutes (2016), which has remained identically worded for more than 25 years. The statute was and remains unambiguous and, in fact, is crystal clear. This court has neither the function nor prerogative to speculate on—or engage in—construction of a statute that continues to convey an unequivocal meaning. Since 1991, section 742.045, in pertinent part, has been straightforward: The 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 any proceeding under this chapter, including enforcement and modification proceedings. § 742.045, Fla....

...743 So.2d at 128 . Instead, it wrongly concluded that because the Legislature later ■ enacted- a specific inclusion of appellate attorney’s fees in section 61.16, Florida Statutes, it must have impliedly rejected" such an inclusion of appellate fees in section 742.045....

...ections 742.031 or 61.16, [1] but had never filed a motion seeking fees. Linn maintained she was entitled to fees because her answer and counterpetition sought fees. The trial court asked Linn whether she was requesting fees under section 742.031 or section 742.045. Linn specifically adopted section 742.045, a section which she had never previously cited....

...costs of the proceeding. This section has been interpreted to allow an award of attorney's fees to the prevailing complainant, whether it be the mother or the father. Brown v. Dykes, 601 So.2d 568 (Fla. 2d DCA), rev. denied, 613 So.2d 2 (Fla.1992). Section 742.045 is broader....

...imilar ability to secure competent counsel where fees are sought under section 742.031. [3] Because the trial court applied the correct test, we affirm that portion of the order denying Starkey's fees request. As to whether a fee award to Linn under section 742.045 would have been sustainable, *337 the only time Linn claimed section 742.045 as a basis for fees was at the fees hearing. This notice clearly violated Stockman; section 742.045 fees were not raised by pleading and thus the claim was untimely. See Chittenden v. Boyd, 669 So.2d 1136 (Fla. 4th DCA 1996) (oral claim for fees made at deposition one day before trial violates Stockman). The trial court may well have recognized the invalidity of Linn's belated attempt to assert section 742.045, thus explaining its reliance on section 742.031....

...As this court held in United Pacific Insurance Co. v. Berryhill, 620 So.2d 1077 (Fla. 5th DCA 1993), "In order to be entitled to attorney's fees, a party seeking them must plead the correct entitlement." Id. at 1079 (citing Stockman). Linn did not timely claim fees under section 742.045 nor did the trial court award fees under that section....

...In summary, the trial court did not abuse its discretion in denying Starkey's motion for fees. However, it was error to award Linn her attorney's fees and costs under section 742.031 as she was not the prevailing party in the paternity suit. Linn's failure to timely seek fees under section 742.045 precludes a fee award under that section....

...I agree that the court below did not abuse its discretion in denying Craig Starkey's motion for attorney's fees. However, I would affirm the award of attorney's fees to Lori Linn. Linn initially requested attorney's fees pursuant to section 742.031. She later requested attorney's fees at the fees hearing pursuant to section 742.045....

...The trial court awarded fees pursuant to section 742.031. The award should be upheld because Starkey clearly had ample pretrial notice that Linn was seeking attorney's fees in this action, and the effect of her initial reliance on section 742.031, rather than section 742.045, is de minimus....

...h requested that Starkey "pay all attorney's fees, court costs and any other fees paid by respondent in the bringing of this action, pursuant to section 742.031 and 61.16, Florida Statutes (1993)." At the fee hearing, Linn requested fees pursuant to section 742.045. *338 Both section 742.031 and 742.045 are in chapter 742, "Determination of Parentage." Section 742.031 authorizes attorney's fees only for determination of paternity and does not address the award of fees for subsequent proceedings. P.A.G. v. A.F., 602 So.2d 1259 (Fla.1992). The Legislature remedied the gap in attorney's fees for subsequent proceedings by enacting section 742.045, which authorizes an award of attorney's fees in any proceeding under chapter 742. P.A.G., 602 So.2d at 1261, n. 1. It seems unlikely that Starkey would have done anything differently in these proceedings had he known Linn intended to seek fees pursuant to section 742.045 rather that section 742.031....

...5th DCA 1993), the party seeking attorney's fees pled only section 57.105. The trial court awarded fees pursuant to chapter 501. Chapter 501, however, did not apply to the case. Thus the attorney's fees were reversed because "as pled and awarded," they were erroneous. Here, section 742.045 would be applicable to these proceedings....

...custody and have the child live with her in California, a position the court characterized as "selfish." The court awarded the father attorney's fees of $10,000 and costs of $1939.85. 1As a paternity case, the applicable statute is section 742.045, Florida Statutes (2014), not section 61.16. Section 742.045 is "nearly identical to the text and function of section 61.16," therefore Rosen applies to the consideration of a fee award under that statute as well....

...As established in earlier unpublished orders in a mandamus proceeding in this court, the appellee wife is entitled to interim attorney's fees and costs in connection with the child custody, child support, and visitation issues in the case pursuant to section 61.16, and alternatively, section 742.045, Florida Statutes (1991)....

wrongly decided, and I would recede from it. Section 742.045 provides for the award of attorney’s fees in

...The motion seeking return of the tax refund requested attorney’s fees but did not specify a basis for the award. Title IV-D cases anticipate the award of attorney’s fees against DOR in actions to determine paternity and support pursuant to section 57.105, Florida Statutes (2010). See § 742.045, Fla....

...Accordingly, we grant the petition for writ of certiorari and quash the portions of the order under review as indicated in this opinion, and remand to the trial court for a reconsideration of its award of attorney’s fees to Ms. Hernandez in light of this opinion and section 742.045, Florida Statutes (2013), which permits an award of attorney’s fees in a paternity action....

...er 61." Only after a further hearing will the parties be able to assess the legal sufficiency of such an award. We take this opportunity to caution the trial court that in determining an award of attorney's fees, it should consider the provisions of section 742.045, Florida Statutes and the factors discussed in Rosen v....

...We remand with the directions outlined in this opinion. Affirmed in part, reversed in part, and remanded with directions. SILBERMAN and CRENSHAW, JJ., Concur. NOTES [1] While Derrevere and Avery are dissolution of marriage cases, they are applicable to this paternity action because section 742.045 is nearly identical to section 61.16, the statute concerning the award of attorney's fees in dissolution of marriage actions....

...It is so ordered. *1262 SHAW, C.J., and OVERTON, McDonald, BARKETT and KOGAN, JJ., concur. GRIMES, J., dissents with an opinion. . We note that subsequent to the decision below and to the date of oral argument before this Court the legislature created section 742.045, Florida Statutes (1991), which specifically authorizes an award of attorney's fees in any proceeding under chapter 742, including enforcement and modification proceedings....

...See Browne v. Browne, 569 So.2d 1378 (Fla. 2d DCA 1990). Additionally, the record shows that the father was in a substantially superi- or financial position to the mother. Therefore, the trial court erred by not awarding attorney’s fees to her. See § 742.045, Fla....

...the child throughout the proposed retroactive period”); § 742.031, Fla. Stat. (2003)(providing that in a paternity action, “[i]f appropriate, the court shall order the father to pay ... moneys sufficient to pay reasonable attorney’s fees”); § 742.045, Fla....

...“provide substance and specify the particular contractual, statutory, or other substantive basis for an award of fees on appeal.” United Servs. Auto. Ass’n v. Phillips, 775 So. 2d 921, 922 (Fla. 2000). The parties to this case each rely on section 742.045, Florida Statutes (2023), as their substantive basis for fees....

...The State of the Law in the Fourth and Fifth Districts In resolving this issue, we would be remiss if we did not note two cases from the Fourth and Fifth Districts that considered this issue en banc, receded from prior precedent holding section 742.045 does not authorize appellate attorney’s fees, and drew dissenting opinions. Because we resolve this issue with the benefit of these cases, we address them first. We begin with the Fourth District. In Beckford v. Drogan, 216 So. 3d 1 (Fla. 4th DCA 2017), the court held that, because section 742.045 “allows for the award of attorney’s fees in ‘any proceeding under this chapter,’” it is “axiomatic that this would include any appellate proceedings necessary to maintain or defend an action under the chapter.” In rea...

...rd. Writing for the dissent, Judge Klingensmith explained that the phrase “‘any proceeding under this chapter’ advises that a court may award fees related only to proceedings brought pursuant to 3 section 742.045.” Beckford, 216 So....

...3d 1277 (Fla. 5th DCA 2018). Relying on dictionary definitions of the word “proceeding,” the majority determined the language “any proceeding” in the statute includes appeals, and, therefore, the court overturned its prior precedent holding section 742.045 did not authorize appellate attorney’s fees in paternity cases....

...Because of that “narrowing phrase,” he determined the proper question was not whether an appeal is “a proceeding,” but rather, whether an appeal is “a proceeding under this chapter.” Id. Judge Eisnaugle then relied on Judge Klingensmith’s dissenting opinion in Beckford and agreed that, while section 742.045 “specifically identifies enforcement and modification actions as ‘proceedings’ under chapter 742, Florida Statutes, nothing within the entirety of that chapter identifies ‘any proceeding under this chapter’ to include appeals.” Id. (quoting Beckford, 216 So....

...their limited focus on the word “proceeding,” in isolation from the remainder of the text, led the majority in both Beckford and McNulty to an incorrect result. We now align ourselves with the dissenting opinions in those cases and hold that section 742.045, Florida Statutes, provides no basis for entitlement to attorney’s fees incurred on appeal. 5  Analysis Our analysis begins, as always, wit...

...2024) (quoting Conage, 346 So. 3d at 598). The statutory language at issue here permits an order to pay a reasonable amount for attorney’s fees to the other party for “maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings.” § 742.045, Fla. Stat. (emphasis added). First, because the phrase “any proceeding” in section 742.045 is immediately followed by the prepositional phrase “under this chapter,” we agree with Judge Eisnaugle that “any proceeding” is “obviously narrowed by the phrase ‘under this chapter.’” McNulty, 233 So....

...2017) (“Commonly, the term ‘include’ suggests that a list is non-exhaustive[.]” (citation omitted)). As we have already explained, however, there is nothing in the statute to suggest an appeal is a “proceeding under” chapter 742. In light of the foregoing, we conclude section 742.045 does not address or include attorney’s fees incurred in appellate proceedings....

...implies”). Indeed, “limitations on a statute’s reach are as much a part of the statutory purpose as specifics of what is to be done.” Id. at 168. Conclusion Because we can find nothing in the text of section 742.045 to authorize an award of attorney’s fees incurred on appeal, the parties’ respective requests for appellate attorney’s fees on this basis are denied....

awarded on appeal in a paternity action because section 742.045, Florida Statutes (2008), does not expressly

...I write only to explain that my vote to deny attorney's fees to the father is not based on the reasoning in Starkey v. Linn, 727 So.2d 386 (Fla. 5th DCA 1999), and Gilbertson v. Boggs, 743 So.2d 123 (Fla. 4th DCA 1999). Both of those cases hold that attorney's fees cannot be awarded on appeal in a paternity action because section 742.045, Florida Statutes (2008), does not expressly authorize fees on appeal. It is true that both section 742.045 and section 742.031 authorize an award of attorney's fees in paternity actions but make no reference to fees for an appeal....

perhaps for fees she still has to pay. Section 742.045, though, is not a reimbursement provision

...section 61.16, Florida Statutes (2022). This statute authorizes an award of appellate attorney’s fees in the context of dissolution of marriage proceedings, not in paternity proceedings. The statutory basis for an award of attorney’s fees in a paternity proceeding is section 742.045, Florida 2 Statutes, which has not been pled....

...Law Office, Mims, for Appellee. ON EN BANC CONSIDERATION OF APPELLEE’S MOTION FOR ATTORNEY’S FEES LAMBERT, J. Appellee, Christine Bowser (“Mother”), has moved for appellate attorney’s fees pursuant to section 742.045, Florida Statutes (2015)....

...Pursuant to Florida Rule of Appellate Procedure 9.331, the majority of the judges of this court have voted to consider this matter en banc. For the following reasons, we grant Mother’s motion and recede from Starkey. In 1991, the Florida Legislature enacted section 742.045.1 The first sentence of this statute, which has remained unchanged for twenty-six years, provides: The court may from time to time, after considering the financial resources of both parties, order a p...

...amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings. §742.045, Fla....

...Collins Inv. Co. v. Metro. Dade Cty., 164 So. 2d 806, 809 (Fla. 1964), superseded by statute on another issue as recognized in Alder-Built Indus., Inc. v. Metro. Dade Cty., 231 So. 2d 197, 199 (Fla. 1970). Therefore, when the Legislature enacted section 742.045 in 1991 and utilized the identical 1 See Ch....

...construction of section 61.16 to award attorney’s fees both at trial and on appeal. In 1994, the Legislature amended the first sentence of section 61.16, by adding the words “and appeals” to the end of the sentence. The Legislature did not similarly amend section 742.045. In 1999, our court concluded in Starkey that section 742.045 did not authorize appellate attorney’s fees in paternity cases because the words “and appeals” now in section 61.16 were “conspicuously” absent from section 742.045, apparently reasoning that the Legislature implicitly intended to preclude appellate attorney’s fees in paternity cases when it amended section 61.16 without similarly amending section 742.045....

...We now hold that our interpretation in Starkey was erroneous. “Questions of statutory interpretation are reviewed de novo.” Kumar v. Patel, 227 So. 3d 557, 558–59 (Fla. 2017) (citing Borden v. E.–European Ins., 921 So. 2d 587, 591 (Fla. 2006)). Accordingly, in reviewing section 742.045, “[w]e first examine the statute’s plain meaning, resorting to rules of statutory construction only if the statute’s language is ambiguous.” Id....

...Auld, 450 So. 2d 217, 219 (Fla. 1984)); see also BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004) (stating that statutory interpretation “begins with the statutory text, and ends there as well if the text is unambiguous”). Because section 742.045 unambiguously provides for an award of attorney’s fees for maintaining or defending any proceeding under this chapter, there is no need to resort to rules of statutory construction to ascertain the legislative intent behind the statute....

...of paternity entered under chapter 742, Florida Statutes, is taking a particular step in the adjudication of both her and her children’s rights, we conclude that she is entitled to an award of appellate attorney’s fees under the plain language and meaning of section 742.045. We therefore recede from Starkey and grant Mother’s motion for appellate attorney’s fees, conditioned upon a showing of her need and Father’s ability to pay....

...EISNAUGLE, J., dissenting. Case No. 5D16-3330 I dissent and would not recede from Starkey v. Linn, 727 So. 2d 386 (Fla. 5th DCA 1999). As Judge Klingensmith astutely explained in Beckford v. Drogan, while section 742.045, Florida Statutes (2015), “specifically identifies enforcement and modification actions as ‘proceedings’ under chapter 742, Florida Statutes, nothing within the entirety of that chapter identifies ‘any proceeding under this chapter’ to include appeals.” 216 So. 3d 1, 2 (Fla....

...This court is without constitutional authority to make policy decisions or rewrite the statute by giving effect to only part of its language, no matter how much we may dislike the outcome. Thus, I would give meaning to all of the language within section 742.045, and find no grounds to recede from the decision rendered by this court eighteen years ago in Starkey. 6  For what it’s worth, I agree that the Legislature should amend the statute to authorize appellate attorney’s fees....

...hristou, the Respondent in the paternity action below. A court in a domestic relations proceeding that is without personal jurisdiction over the respondent may not order the respondent to pay 1 The fees were awarded pursuant to section 742.045, Florida Statutes (2014), which authorizes a court to award attorney’s fees in a paternity action after consideration of the party’s “financial resources.” attorney’s fees....

PER CURIAM. Affirmed. § 742.045, Fla....

...of the circuit court, shall be assessed only against the nonpre-vailing obligor after the court makes a determination of the nonprevailing obli-gor’s ability to pay such costs and fees. § 409.2567, Fla.Stat. (Supp.1994) (emphasis added); see also § 742.045, Fla.Stat....

...On Parties’ Motions for Appellate Level Fees  In this appeal of a final judgment (and interlocutory order on a case management conference) entered in a paternity case (and for related relief), both parties seek appellate level fees, relying exclusively on section 742.045 of the Florida Statutes....

...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 any proceeding under this chapter, including enforcement and modification proceedings. § 742.045, Fla. Stat. (2025). Florida’s district courts are split on whether section 742.045 provides a basis for entitlement to appellate level fees....