THere are no rosen Fees
Marital & Family law Section
Chair: Chris Givens - Givens Givens Sparks, PLLC
rosen does not create
a cause of action for
the party with the
“greater financial
T
o ensure that “both
parties [can] obtain
competent legal
counsel,” Florida’s
family law statutes permit attorney’s
fees claims. 1 To recover fees under
these statutes, the party seeking
fees must “need” assistance and
the other party must have the
“ability to pay.” 2
In 1997, the Supreme Court
held in Rosen v. Rosen that a fee
award could be based on more than
the parties’ “financial resources.” 3
Additional valid considerations
have included the litigation history,
the merits of the claims, and
whether the litigation was primarily
brought to harass. 4
Since Rosen, practitioners
commonly argue for “Rosen fees”
based on these factors, especially
when they represent the more
financially well-to-do party. Despite
the ubiquity of these claims, the
district courts consistently reaffirm
that there is no such thing as Rosen
fees. In other words, Rosen does
not create a cause of action for the
party with the “greater financial
ability to pay” to recover fees. 5
When the party with no “need”
seeks fees from the party with the
ability to pay”
to recover fees.
“lesser ability to pay,” the “primary
criteria” for an award “are not
present” and the Rosen factors are
not applicable. 6
This does not mean that an
impecunious spouse or parent is
permitted to abuse the judicial
system. In such cases, the wealthier
party may seek fees by appealing
to the trial court’s “inherent
authority” to sanction “egregious”
conduct; however, this is a much
higher bar than Rosen: This
doctrine is “rarely applicable”
and is “reserved for those extreme
cases where a party acts in bad
faith, vexatiously, wantonly, or
for oppressive reasons.” 7
In sum, although Rosen fees are
widely referenced, Rosen does not
actually create an avenue for the
more affluent spouse to recover
fees. Instead, such fee shifting
can occur only based on the
trial courts’ inherent authority to
sanction in the rarest and most
egregious of cases.
See, e.g., Dennis v. Dennis, 230 So.
3d 1277, 1278 (Fla. 1st DCA 2017).
3 Rosen, 696 So. 2d at 700. Although
Rosen expressly addressed section
61.16, it has been held “equally
applicable to paternity actions.” Zanone
v. Clause, 848 So. 2d 1268, 1271 (Fla.
5th DCA 2003).
4 Rosen, 696 So. 2d at 700-01.
5 Hahamovitch v. Hahamovitch,
133 So. 3d 1020, 1024 (Fla. 4th DCA
2014).
6 Id. at 1024.
7 Bitterman v. Bitterman, 714 So. 2d
356, 365 (Fla. 1998) (internal
quotations omitted). A party may also
seek attorney’s fees against the other
party, regardless of their relative
financial circumstances, as a sanction
under section 57.105 for raising
unsupported claims or defenses or
for intentionally
delaying the
proceedings.
§ 57.105(1)-(2),
Fla. Stat. (2018).
2
Author:
Mark Baseman -
Felix Felix
Baseman
Rosen v. Rosen, 696 So. 2d 697,
699 (Fla. 1997); § 61.16, Fla. Stat.
(2018); § 742.045, Fla. Stat. (2018).
1
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50
MAR - APR 2019
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HCBA LAWYER