The Devil is in the Details by Martin Kofsky, Esq.

 In the recent Fourth District Court of Appeals case of Miller v. Miller, 2012 Fla. App Lexis 20188 (Fla. 4th DCA 2012), the Court considered the former wife’s appeal from an attorney’s fees award to the former husband in excess of $500,000.00 in fees and costs.   The former wife prevailed based on the language in the controlling marital settlement agreement concerning an award of attorneys’ fees in the event of a dispute. 

 The agreement that settled the parties’ divorce litigation was titled, “Separation, Child Custody, and Property Settlement Agreement” (the “MSA”) and contained the following provision:

 ENFORCEMENT: If any subsequent proceedings to enforce any provisions of the Agreement are necessary, the prevailing party in any such proceeding will be entitled to reasonable attorney’s fees, costs and expenses from the losing party.(Emphasis added).

 The former wife filed a Verified Petition for Modification of Shared Parental Responsibility and Visitation.  In response, the former husband filed a Verified Supplemental Petition for Modification of Residential Custody and Child Support, and requested attorney’s fees. During the pendency of the former husband’s modification action, the former wife filed several contempt and enforcement motions against him related to child support.

The Magistrate granted the former husband’s request for modification of child support, but denied his request for contribution to private school tuition and orthodontic work for the minor children.  The Magistrate found neither party entitled to attorney’s fees, suit monies, or costs excepting reasonable legal and accounting fees unnecessarily incurred by the former husband due to the former wife’s failure to comply with discovery.  The Magistrate noted:

[T]he huge amount of fees incurred on each side . . . are staggering given the issues. The Former Husband’s fees have been paid throughout by his Father. . . [T]his litigation was not so much about child support but about the anger of the Former Husband’s Father toward his Former Daughter-in law about what he perceived to be her ill-timed decision to initiate civil contempt proceedings against his son . . . after he had been diagnosed as suffering from cancer, with his future being unknown. . . .

 The Magistrate did not determine a prevailing party.  The former husband filed exceptions to the Magistrate’s report, arguing that the MSA provided for fees.  The trial court agreed with the former husband.  Thereafter the general magistrate held a hearing to determine the prevailing party, and award fees. The trial court requested the former husband’s counsel to draft an order.

 The Magistrate held an evidentiary hearing where the former husband requested $1,123,774.29 in fees. The trial court later entered an order awarding $587,287.14 in attorney’s fees and $68,411.40 in accountant fees to the former husband. The former wife appeals this order.

The Fourth District Court of Appeal held that the trial court erred by awarding the former husband prevailing party attorney’s fees pursuant to the MSA because the MSA only allowed for fees when a party brought an action to enforce the MSA; it did not apply where a party sought to modify the terms of the MSA. The former husband responds that he was entitled to fees under the MSA because his modification action was “inextricably intertwined” with the former wife’s attempts to enforce the MSA.

 The Fourth DCA stated that, “[i]t is well-settled that attorneys’ fees can derive only from either a statutory basis or an agreement between the parties.” Trytek v. Gale Indus., Inc., 3 So. 3d 1194, 1198 (Fla. 2009). “[C]ontractual provisions concerning attorney’s fees must be strictly construed.” Wendel v. Wendel, 852 So. 2d 277, 282 (Fla. 2d DCA 2003).

Reading the MSA by its plain language, attorney’s fees are to be awarded only when one party brings an action to enforce the terms of the MSA. Here, the husband did not seek to enforce the terms of the MSA, but rather to modify its terms.

 This case provides several important lessons.  The attorneys’ fee language in this particular agreement is incomplete.  If the provision said that the prevailing party would be awarded his or her attorneys’ fees in the event of an action to “enforce or modify” the MSA, the Husband would have won. 

 By failing to draft for all of the circumstances in which the parties might have found themselves back in court, the MSA created a significant “zone of uncertainty” for the parties.  Drafting a marital settlement agreement, like any contract, demands attention to detail and precision in drafting.  The courts will generally not insert forgotten provisions or rewrite a bad deal. 

 My years’ of experience in the courtroom and as a corporate lawyer have equipped me with the tools necessary to litigate cases as needed and when settlement becomes an option, consider all of the issues and draft divorce settlement agreement that accounts for foreseeable contingencies.  As is the case with most agreements, the devil is in the details.

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