Funding your appeal: temporary appellate fees in dissolution cases.

• Author: Castellanos, Genny
• Position: Florida

So your client has received an unfavorable judgment in a dissolution of marriage case. Now what do you do? Well, you appeal of course! An award of final attorneys' fees from the appellate court is available pursuant to Fla. R. App. P.9.400(b) at the conclusion of an appeal. However, if your client is at a disadvantage economically, being able to obtain fees to prosecute or defend the appeal while it is pending, rather than at its conclusion, may make the difference in whether your client has funds to pursue the appeal. Under Rule 9.600(c) and F.S. [section] 61.16, appellate fees are available while the appeal is still pending. These fees are known as temporary appellate attorneys' fees.

This article discusses the relationship between Rule 9.400(b) and Rule 9.600(c)(1)--that is, the relationship between final attorneys' fees and temporary attorneys' fees. It will clarify when a Rule 9.600(c)(1) motion for temporary fees is appropriate as opposed to when a Rule 9.400(b) motion for final fees is appropriate.

Understanding Temporary Appellate Attorneys' Fees: The Four Cs

Understanding when and how to move for temporary and final appellate attorneys' fees can be tricky. The process is easier if you remember the "four Cs": 1) competent counsel; 2) continuing jurisdiction; 3) concluding jurisdiction; and 4) chicken or the egg.

* Competent Counsel--The purpose of both final and temporary attorneys' fees is to put both parties in a dissolution proceeding on equal footing. It is rooted in the equitable nature of dissolution proceedings and the need for both sides to have access to competent counsel regardless of financial means. (1) According to "the equitable considerations underlying our dissolution law" in Florida, a trial court must "mitigate the harm an impecunious spouse would suffer where the other spouse's financial advantage accords him or her an unfair ability to obtain legal assistance." (2) However, it would be an abuse of discretion for the court to require one party to pay the other party's fees if the parties were already on equal footing. (3) When considering an award of either final or temporary fees, the court will determine each spouse's need and ability to pay. (4)

* Continuing Jurisdiction--F.S. [section] 61.16 provides, in pertinent part, as follows: "The trial court shall have continuing jurisdiction to make temporary attorney's fees and costs awards reasonably necessary to prosecute or defend an appeal on the same basis and...