APPEAL: THE ISSUES: 3rd ISSUE: MY REPLY TO HIS ANSWER

Excerpted from my Reply Brief, this is my final counter to his Answer in regards to the Third Issue.

NOTE:  His lawyer's name has been replaced with the title I prefer to call him "Asshat Rat Lawyer".

III.  The Trial Court Did Commit Error in Awarding Sanctions to the Husband Which Wife Could Not Afford to Pay.

The record is replete with evidence that Wife could not afford to pay sanctions, for example, Wife’s Financial Affidavit (1 R. 63-69). Therefore, the “bite” of financial sanctions was too severe. One need only glance at her Financial Affidavit (1 R. 63-69) to realize that the only way she could afford an attorney would be if she borrowed the funds.

Wife’s Conduct Was Not Found to be Vexatious or Overly Litigious

While Mettler v. Mettler, 569 So. 2d 496 (Fla. 4th DCA 1990) may grant a trial court the right to sanction based on vexatious and overly litigious actions; Husband’s logic regarding Rosen v. Rosen 696 So. 2d 697 (Fla. Supreme Ct. 1997) and Diaz v. Diaz, 727 So. 2d 954 (Fla. 3d DCA 1999) is flawed (Husband’s Brief, pg. 26). In Rosen – the authority in the matter of attorney’s fees – the court ruled that all relevant circumstances are to be considered by the trial court. Moreover, in the instant case, there is no order – prior to the Final Judgment – finding Wife’s conduct as such.

More importantly, until the final hearing, sanctions were never ordered on the Motions to Compel Deposition, for Protective Order, or for Contempt. Husband’s counsel testified at the final default hearing that sanctions for an entire litany of motions^[1] (2 Tr. 15, lines 6-16) should be granted because he viewed them as “frivolous”. In actuality, there are only 2 orders in the record for Wife to pay sanctions: the Order Compelling [Wife’s] Discovery (1 R. 23) in the amount of $350, and the Order Granting Husband’s Motion to Strike (2 R. 242) “amount due shall be reserved for the Final Hearing”. Husband was ordered to pay sanctions to Wife in the amount of $350 in the Order Compelling [Husband’s] Discovery (1 R. 142).

The motion to strike is 3 pages long and the hearing lasted for 4 minutes. The deposition was scheduled for a 3 hour period. Husband’s counsel testified ^[1](2 Tr. 15, lines 16-18) that his office spent 15.35 attorney hours and 20.5 paralegal hours. The time Husband’s counsel alleges is unreasonable to begin with. But, more importantly, as previously stated in this Reply Brief, Husband charged $7,500 of his attorney’s fees to Wife’s account without her consent. Wife attached, as Exhibit I to her Motion for Reconsideration, the relevant bank statements showing these charges (2 R. 286 & 296). Unless the trial court assumed that Wife voluntarily agreed to pay the “Law Firm of [Asshat Rat Lawyer]” to represent Husband against her, one has to wonder why these charges were not addressed during the final hearing or upon the trial court's review of the Motion for Reconsideration.

Husband charged $7,500 of his legal fees to Wife’s account. He attributed those funds to Wife in his Equitable Distribution table requiring Wife to pay an “equalizing sum” which included those funds. He was awarded attorney’s fees in the amount of $10,155.50. Essentially, this judgment gives Husband the ability to double collect on $7,500 that should have been already attributed to him in his column of the Equitable Distribution table.

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^[1] Testimony of Asshat Rat Lawyer: “These are the fees and costs that, in our perspective, were due to frivolous litigation, vexatious litigation, litigation basically which was clearly not required but for the difficulty of the wife.

There was a motion to compel wife’s discovery. There was a motion to compel the wife’s deposition. There was a motion for wife’s contempt. There was a motion for protective order. There was wife’s video teleconference deposition no-show. There was a motion to strike the wife’s pleadings.”

2 Tr. 15, lines 16-18.

APPEAL: THE ISSUES: 3rd ISSUE: HIS ANSWER

Excerpted from his Answer Brief, this is his Answer to my Third Issue.  My Reply is here.

III.  THE TRIAL COURT DID NOT ERR IN AWARDING SANCTIONS TO THE HUSBAND WHICH WIFE COULD NOT AFFORD TO PAY

Summary

The Trial Court has the discretion to order sanctions based on the vexatious and overly litigious actions of the Former Wife. Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997); Mettler v. Mettler, 569 So. 2d 496 (Fla. 4th DCA 1990); Diaz v. Diaz, 727 So. 2d 954 (Fla. 3d DCA 1999). The Court found that the Former Wife engaged in vexatious or overly litigious conduct by refusing to obey numerous discovery orders, and refusing to attend a court ordered video deposition. The Court awarded the Husband fees and costs caused by the Wife’s bad behavior. There is absolutely nothing in the record to indicate the Wife could not afford to pay attorney’s fees and costs, and in fact, the Former Wife never testified at a single hearing, never put on any testimony, never put on any witnesses, and refused to attend the Final Hearing. The Former Wife seeks to introduce evidence in her Appeal that was never introduced as evidence in the record. “To a woman who had to borrow $2,500 to retain an attorney, that is a small fortune.” This does not appear anywhere in the record, and appears only in the Wife’s Amended Initial Brief.

Argument

The Former Wife, argues that the Former Husband was awarded sanctions which she could not afford to pay. There is nothing in the record that indicates whether or not the Former Wife could afford to pay sanctions. In fact, Appellee cannot ascertain from the Wife’s Initial Brief, exactly what the Former Wife is even addressing. The Former Wife does make mention that in her brief, “The trial court was aware that Wife could not afford to pay her attorney,” but this does not appear anywhere in the record and was never entered into as evidence,” therefore cannot be considered on appeal. The Former Wife does go on to say in her brief, “but it (Court) failed to even inquire as to Wife’s financial circumstance at any point during the final hearing.” Apparently, the Appellant does not understand that it is not up to the Court to inquire of anything. It is up to the party (or her counsel) to have the evidence introduced into the record. Finally, no evidence was entered into the record at trial, because the Former Wife simply chose not to appear at the trial.

The Trial Court has the discretion to order sanctions based on the vexatious and overly litigious actions of the Former Wife. Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997); Mettler v. Mettler, 569 So. 2d 496 (Fla. 4th DCA 1990); Diaz v. Diaz, 727 So. 2d 954 (Fla. 3d DCA 1999). The Court found that the Former Wife engaged in vexatious or overly litigious conduct by refusing to obey numerous discovery orders, and refusing to attend a court ordered video deposition. The Court awarded the Former Husband fees and costs caused by the Former Wife’s bad behavior. There is absolutely nothing in the record to indicate the Former Wife could not afford to pay attorney’s fees and costs, in fact, the Former Wife never testified at a single hearing, never put on any testimony, never put on any witnesses, and refused to attend the Final Hearing. The Former Wife seeks to introduce materials in her Appeal that were never introduced as evidence in the record. In the Wife’s Amended Initial Brief, she states, “To a woman who had to borrow $2,500 to retain an attorney, that is a small fortune.” This does not appear anywhere in the record, and appears only in the Wife’s Amended Initial Brief.

APPEAL: THE ISSUES: 3rd ISSUE: SANCTIONS WIFE COULD NOT AFFORD TO PAY

Excerpted from my Initial Brief, this is the Third Issue regarding the sanctions of attorney's fees.  His Answer is here, and my Reply is here.

III.  The trial court committed reversible error in awarding sanctions to Husband which Wife could not afford to pay.

Summary

Florida law has held that sanctions should be fashioned so that the party being sanctioned can afford them. The trial court was aware that Wife could not even afford to pay an attorney to represent her. Her financial affidavit revealed her dire financial situation. Husband was awarded all the marital assets that could be liquidated at the final hearing. Yet, the trial court sanctioned Wife more than $10,000. To a woman who had to borrow $2,500 to retain an attorney, that is a small fortune. The court did not even consider whether or not Wife could pay, nor did it inquire about her financial situation during the final hearing, although Wife had filed two (2) Financial Affidavits with the court indicating her situation. This clearly constitutes an abuse of judicial discretion.

Argument

In the first set of motions to compel granted by the court, sanctions were awarded both to Husband and to Wife in the amount of $350 respectively and effectively canceled each other out (1 R. 51 & 1 R. 142).

The only other order entered by the trial court granting sanctions was in the order striking Wife’s pleadings and preparation and attendance at the deposition (1 R. 190-192). There were no orders finding Wife’s litigation to be “frivolous,” “vexatious” or “overly litigious” at any point during the proceedings^[1]. There was no jurisdiction reserved for attorney’s fees for vexatious or overly litigious conduct in ANY order during the entire proceedings. Husband litigated for this sanction during the final hearing in bad faith. McHugh v. McHugh, 819 So. 2d 947 (Fla. 4th DCA, 2002); Cibula v. Cibula, 578 So.2d 519, 521 (Fla. 4th DCA 1991).

Sanctions must be fashioned appropriately 

The U.S. Supreme Court in Chambers v. Nasco, Inc., 501 U.S 32 (Supreme Court 1991) warned that sanctions must be fashioned appropriately and that “inherent powers must be exercised with restraint and discretion.” Florida appellate courts have concluded that trial courts “must take into consideration the financial circumstances of the party being sanctioned.” Baker v. Alderman, 158 F.3d 516, 528-29 (11th Cir.1998) Byrne v. Nezhat, 261 F. 3d at 1098-99 n. 53 (Fla. 11th Cir. 2001).
The trial court was aware that Wife could not afford to pay her attorney (5 Tr. 3, lines 19-24), but it failed to even inquire as to Wife’s financial circumstances, or to review either of the financial affidavits she had filed, at any point during the final hearing and said simply “All right” (2 Tr. 16, line 3) and signed the final judgment Order which Husband had submitted.

In Martin v. Automobili Lamborghini Exclusive, Inc., 307 F. 3d 1332, 1335 (Fla. 11th Cir. 2002), the appellate court held that “[S]anction orders must not involve amounts that are so large that they seem to fly in the face of common sense, given the financial circumstances of the party being sanctioned.” The appellate court went on to conclude:

“[S]anctions must never be hollow gestures; their bite must be real. For the bite to be real, it has to be a sum that the person might actually pay. A sanction which a party clearly cannot pay does not vindicate the court's authority because it neither punishes nor deters.”

Nothing in the record indicated that Wife was likely to come into a large amount of money in the future. In fact, Husband was awarded all the unliquidated assets of the marriage (i.e., the house and the three vehicles, including the valuable Corvette (2 R. 250-254) and had previously diverted the most valuable asset: the family business (1 R. 39-43 & 139), leaving Wife with nothing.)

Therefore, the trial court erred in awarding sanctions to Husband that Wife had no ability to pay.

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^[1]

  Indeed, one should wonder if a domestic violence victim’s desire and attempts to keep her home and work addresses confidential in order to remain safe from her Husband who committed more than 16 acts of violence against her should ever constitute “vexatious” or “overly litigious” conduct?