NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

MARIA TEREZA DE CASTELO BRANCO ) FERREIRA CLEARY, aka M. TERESA ) CLEARY, ) ) Appellant, ) ) v. ) Case No. 2D16-4691 ) ROBERT W. CLEARY, ) ) Appellee. ) ) Opinion filed November 3, 2017. Appeal from the Circuit Court for Hillsborough County; Catherine M. Catlin, Judge.

Arnold D. Levine and Robert H. Mackenzie of Levine & Sullivan, P.A., Tampa, for Appellant. Lorena L. Kiely, Tampa, for Appellee.

LUCAS, Judge. In Cleary v. Cleary, 872 So. 2d 299 (Fla. 2d DCA 2004), an opin ion that provides the backdrop for the present appeal, we reversed part of the circuit court's equitable distribution and retroactive alimony award in a final judgment of dissolution of marriage and remanded the case for further proceedings so that the circuit court could- 2 - fashion an appropriate adjustmen t. We do not know why, but the parties chose not to pursue the matter further in the circuit court for more than a decade. In 2014 and 2015, however, the litigants brought the dispute back before the cour t, seeking what was, in essence, an accounting of all the payments and transactions tha t had transpired which they contended should be considered in the wake of this court's 2004 opinion and remand. On August 30, 2016, after the conclusion of evidentiar y hearings in which the parties presented numerous financ ial documents and the testimon y of accountants, the circuit court entered a final judgment. The final judgment inc orporated findings from a prior omnibus order and money judgment that had been entered on October 5, 2015. Among its rulings and determinations, the circuit court's final judgment awarded $94,482.25 of attorney's fees and costs to Robert W. Cleary, th e Former Husband. Maria Tereza de Castelo Branco Ferreira Cleary, the Former Wife , now appeals that ruling. From our review of the record, we find no error in the court's factual determinations, including its conclusion that the attorney's fe es and costs the Former Wife incurred after a December 1, 2014, meeting between the par ties' respective accountants were not reasonable. We also agree with the circui t court's observation in the final judgment that the Former Wife's "pursuit of her claim s [was] completely without merit, unjustified[,] and caused attorney's fees and costs for [the] Former Husband that

should not have been incurred." 1

1 It is quite clear that the circuit court found the Former Husba nd's expert accountant far more credible and persuasive than the Former Wif e's accountant, a determination that the circuit court was free to make and that was amply supported by the record.- 3 - What we find problematic is that the final judgment never descr ibed what legal basis supported an attorney's fee award in favor of the F ormer Husband, whether it might be section 61.16, Florida Statutes (2016), Rosen v. Ro sen, 696 So. 2d 697 (Fla. 1997), or the court's "inherent authority" to sanction egregiou s conduct or bad faith litigation. See Moakley v. Smallwood, 826 So. 2d 221, 226 (Fla . 2002); Myrick v. Myrick, 214 So. 3d 769, 772 (Fla. 2d DCA 2017). Although other wise thorough and detailed, the final judgment is silent on this point. In his briefing and at oral argument, the Former Husband discla imed inherent authority as a basis for the circuit court's ruling, i nstead arguing that we should simply construe the circuit court's findings within the framewo rk of section 61.16(1) and Rosen. We are prevented from doing so, however, because the fi nal judgment included findings that the Former Wife was entitled to have her attorney's fees paid for by the Former Husband (up to December 1, 2014), and that the Former Hu sband had an ability to pay those fees for her. Those findings preclude premising a fee award to the Former Husband under section 61.16 and Rosen. See Rogers v. Wiggins, 198 So. 3d 1119, 1121 (Fla. 2d DCA 2016) (holding under section 61.16(1) and Ros en that "[w]hile the trial court may take into account the manner in which the mothe r litigated a case, that factor 'does not, however, abrogate the requirement that [the m other] have the ability to pay.' " (second alteration in original) (quoting Zanone v. Clau se, 848 So. 2d 1268, 1271 (Fla. 5th DCA 2003))); Hahamovitch v. Hahamovitch, 133 So. 3d 1 020, 1024-25 (Fla. 4th DCA 2014) ("Rosen cannot be applied to allow an award of at torney's fees in favor of a spouse with the greater financial ability to pay."). Were we to categorize the final judgment's fee award as an exercise of inherent authority—which , again, the Former- 4 - Husband does not believe we shou ld do—we would still be constra ined to reverse that part of the judgment, as the dis puted accounting issues concern ing credits and payments between these litigants do not present the kind of "ex treme case" that would give rise to this "rarely applicable" common law sanction. See Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998); Hallac v. Hallac, 88 So. 3d 25 3, 259 (Fla. 4th DCA 2012) ("Such awards are rarely applicable and should be reserve d for extreme cases . . . ."). 2 Accordingly, we must reverse the portion of the final judgment that awards the Former Husband his attorney's fees from the Former Wife. W e affirm the judgment in all other respects. On remand, the circuit court shall ente r an amended final judgment striking the fee awar d in favor of the Former Husband. Affirmed in part; reversed in part; remanded with instructions.

CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.

2 We would also observe that, although detailed in their recitati on of the evidence the court considered, neither the final judgment nor t he omnibus order recite factual findings of bad faith c onduct with the requisite "high degree of specificity" necessary to invoke the court's inherent authority to impose sa nctions. See Moakley, 826 So. 2d at 227.