In the case of Baker v. Baker, 35 So.3d 76 (Fla. 2nd DCA
2010), the Court stated the trial court committed error because there was a
lack of evidence supporting the temporary attorney fee. The Husband appealed
from the trial court's order awarding temporary attorney's fees to the Wife.
There was sparse testimony regarding fees at the hearing below. The Wife
testified that she borrowed $4,500 to retain counsel and that $1,800 was spent
on four days of depositions. No other evidence was presented regarding the
Wife's attorney's hourly rate, or the number of hours expended on the case. The
trial court found that the Wife had the need, and the Husband had the ability
to pay $7,500. The husband challenged the lack of evidence to support the
amount awarded and challenged the need for a remand, arguing that the Wife had
failed to produce evidence to support her claim for temporary relief. The
District Court held:
1. "To obtain
an award of temporary attorney's fees in a dissolution of marriage proceeding,
'[t]he party seeking fees must prove with evidence the reasonableness and the
necessity of the fee sought.'"
2. "Here, the
trial court did not make factual findings regarding the reasonableness of the
attorney's fees and, in fact, could not do so because no evidence was presented
to support findings on a reasonable hourly rate. Further, limited information
was presented as to the time expended or to be expended."
3. "Because
the record does not contain competent, substantial evidence to support a
determination on the reasonableness of the fees awarded, we reverse the
appealed order to the extent that it awarded $7500 in temporary attorney's
fees."
4. "[A]
temporary award does not create vested rights, and the trial court may modify
or vacate a temporary award at any time during the litigation. We thus remand
for further proceedings for the trial court to determine a reasonable temporary
fee award and for the trial court to make findings to support that award."
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