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Date: 07-17-2022
Case Style:
SHLOMO NIZAHON vs TAMARA BACH f/k/a TAMAR NIZAHON
Case Number: 21-1765
Judge:
PER CURIAM
Spencer D. Levine
Mark W. Klingensmith
Alan O. Forst
Court:
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
On Appeal From The Circuit Court for the Seventeenth Judicial Circuit, Broward County
Michael Rothschild
Judge
Plaintiff's Attorney:
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Defendant's Attorney: Robert M. Klein and Andrew M. Feldman of Klein Park & Lowe, P.L.
Description:
West Palm Beach, Florida - Divorce lawyer represented Appellant with appealing awarding Tamara Bach attorney’s fees from a dissolution of marriage action.
Shlomo Nizahon (“Former Husband”) appeals the trial court’s final
judgment awarding Tamara Bach (“Former Wife”) attorney’s fees arising
from a dissolution of marriage action, where a final judgment of dissolution
of marriage incorporated the parties’ Marital Settlement Agreement
(“MSA”), which required Former Husband to make monthly child support
payments to Former Wife. Of the several issues raised, we write to address
only one: whether the trial court erred in failing to make factual findings
in support of its judgment for a monthly payment plan. On that issue, we
agree and reverse.
Former Wife filed a motion for contempt alleging Former Husband failed
to pay his required child support under the MSA. The parties later
appeared before the trial court and announced they had settled their
issues through mediation and a separate settlement agreement. The court
adopted the parties’ settlement agreement, noting it was doing so only to
ratify the agreement and “not for the purposes of proving liability to either
2
party.” Additionally, the trial court reserved jurisdiction to enter any other
necessary orders, including for an award of attorney’s fees and costs.
Former Wife moved for attorney’s fees under the MSA because of
Former Husband’s alleged non-compliance with the MSA. Former
Husband also filed a motion for entitlement to attorney’s fees, alleging he
was the prevailing party in these proceedings. After considering
memorandums of law addressing both motions, the trial court entered an
order granting Former Wife’s motion for attorney’s fees and required
Former Husband to pay the award in eight monthly payments, finding that
“but/for [Former Wife’s] legal efforts [Former Husband] may never have
complied with terms of the MSA.” The order also denied Former Husband’s
request for fees. This appeal followed.
We review an attorney’s fees award for an abuse of discretion. Campbell
v. Campbell, 46 So. 3d 1221, 1222 (Fla. 4th DCA 2010). A trial court may
allow an award of attorney’s fees to be paid over time; however, an order
that imposes a payment plan “must set forth some factual basis for
imposing the specific payment plan selected.” Rogers v. Rogers, 12 So. 3d
288, 292 (Fla. 2d DCA 2009); see also Scire v. Hochman, 268 So. 3d 167,
169 (Fla. 4th DCA 2019) (“Factual findings for the payment plan must be
made.”). Here, the trial court’s order requires Former Husband to pay the
attorney’s fees award in monthly installments for eight months yet does
not include any factual basis for the installment period nor the installment
amount.1
A payment plan’s absence of factual findings requires an appellate
court “to reverse and remand the case to the trial court to make the
requisite findings.” Scire, 268 So. 3d at 169; see also Beckstrom v.
Beckstrom, 183 So. 3d 1067, 1069 (Fla. 4th DCA 2015) (affirming the
reversal of an award of attorney’s fees because the trial court did not make
factual findings regarding the parties’ respective need and ability to pay);
Ingram v. Ingram, 59 So. 3d 147, 148 (Fla. 1st DCA 2011) (“In
circumstances where the record may contain competent, substantial
evidence to support these specific findings, but the trial court’s order omits
such findings, the case should be remanded for entry of an appropriate
order.”).
Outcome: Therefore, we reverse and remand to the trial court for entry of an
appropriate order making the necessary factual findings to support the
payment plan. See Scire, 268 So. 3d at 169. We affirm on all other issues
raised without comment.
Plaintiff's Experts:
Defendant's Experts:
Comments: