“Default” v “Prevailing Party” Fee Provision

Wooden justice gavel and block with brassThe difference between  “defaulting party” and “prevailing party” fee provision was recently addressed in Sacket v. Sacket, 38 Fla.L.Weekly D1358 (Fla. 4th DCA 2013).

The former wife and the former husband, dissolved their marriage in 2010.  The marital settlement agreement included a timesharing schedule for the
minor children as well as the following provision regarding attorney’s fees and costs:

“Except as otherwise provided in this Agreement, should either party to this agreement default in his or her obligation hereunder, the party in default shall be liable to the other party for all reasonable expenses, including attorney’s fees, incurred by the other party with regard to the enforcement of the obligations created in this Agreement, whether suit be brought or not.”

The former wife filed an emergency motion for temporary sole custody and parental responsibility and for contempt against the former husband, claiming that the former husband was not complying with the time sharing schedule and thereby causing various problems for the parties’ minor daughter. The former wife also requested that the trial court order the former husband to pay attorney’s fees and costs related to the filing of the former wife’s emergency motion.

After an evidentiary hearing, the trial court found that the former husband should not be held in contempt.

Later the trial court held a hearing on the issue of attorney’s fees and costs. After the hearing, the trial court awarded the Former Husband $6,932 in attorneys’ fees to defend against the Former Wife’s motion for contempt.

The former wife was unsuccessful in her attempt to hold the former husband in contempt, thus, the trial court found that the former husband did not “default” by failing to comply with the time sharing schedule.  However, nor did the former wife “default” in an obligation under the agreement simply because the former husband “prevailed” in defending against her emergency motion.

Accordingly, since there was no “default” and a “default” was necessary to trigger application of the fees provision in the marital settlement agreement, the trial court erred in awarding the former Husband fees as the “prevailing party” and the case was reversed.




Eddie Stephens is a Board Certified Marital and Family (Divorce) attorney in Palm Beach Florida and a partner in the form Ward, Damon, Posner, Pheterson and Bleau, PL and can be reached at (561) 842-3000.

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