FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-2066

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RENEE MARIE HOLLONBECK,

n/k/a Renee Marie Turley,

Former Wife,

Appellant,

v.

SEAN ANDREW HOLLONBECK,

Former Husband,

Appellee.

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On appeal from the Circuit Court for Bay County.

Ana Garcia, Judge.

August 13, 2019

WINOKUR, J.

Renee Marie Hollonbeck challenges both the trial court’s 

Final Judgment and Amended Final Judgment establishing a 

parenting plan, child support, time-sharing schedule, and other 

related relief. We find that the trial court did not consider or 

make any findings regarding her former husband’s ability to pay 

attorney’s fees and the former wife’s need to have the fees paid. 

See Fulmer v. Fulmer, 961 So. 2d 1081, 1082 (Fla. 1st DCA 2007); 

Perrin v. Perrin, 795 So. 2d 1023, 1024 (Fla. 2d DCA 2001). We 

also find that the trial court failed to calculate pre-judgment 

interest for its award of retroactive child support. See Herrero v. 

Pearce, 571 So. 2d 96, 97 (Fla. 1st DCA 1990). Finally, we find 
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that the trial court abused its discretion when it ordered shared 

parental responsibility, but gave the former husband ultimate 

decision-making authority over the child. See Neville v. 

McKibben, 227 So. 3d 1270, 1272–73 (Fla. 1st DCA 2017); 

Cranney v. Cranney, 206 So. 3d 162, 164 (Fla. 2d DCA 2016). We 

reject the former wife’s remaining claims. 

As to the attorney’s fees issue, the former husband correctly 

notes that a trial court is permitted to consider the parties’

litigation conduct to limit an award of attorney’s fees. See Rosaler

v. Rosaler, 226 So. 3d at 911 (Fla. 4th DCA 2017). However, in 

determining whether and how much to award fees under section 

61.16(1), Florida Statutes, “the financial resources of the parties 

are the primary factor to be considered.” Rosen v. Rosen, 696 So. 

2d 697, 700 (Fla. 1997). While “section 61.16 should be liberally—

not restrictively—construed to allow consideration of any factor 

necessary to provide justice and ensure equity between the 

parties,” id., which may result in no award of fees at all, a trial 

court must consider the “financial resources of both parties.” 

§ 61.16(1), Fla. Stat. The record reflects no such consideration.*

 * The dissent argues that section 61.16(1) requires that a 

trial court need not consider both parties’ respective financial 

resources if it decides not to award attorney fees. Florida courts, 

however, have concluded that a trial court must consider the 

parties’ ability to pay and need for attorney’s fees any time it 

considers whether to award fees, regardless of whether it actually 

decides to award such fees. See Bauchman v. Bauchman, 253 So. 

3d 1143, 1148 (Fla. 4th DCA 2018) (finding that section 61.16(1) 

“requires the trial court to consider and evaluate each party’s 

financial resources in deciding whether, and to what extent, to 

award attorney’s fees”); Perez v. Perez, 100 So. 3d 769, 771 (Fla. 

2d DCA 2012) (holding that pursuant to section 61.16(1), a trial 

court must consider both parties’ financial resources “in 

evaluating whether an award of fees is appropriate”) (emphasis 

added). In other words, courts have interpreted the word “may” in 

the statute to mean that the court has the power to award fees, 

but must consider need and ability in deciding upon such a 

request. See Rosen, 696 So. 2d at 700 (holding that section 61.16 

“simply says that a trial court may from time to time, i.e., 

depending on the circumstances surrounding each particular 
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As to the issue of shared parental responsibility and ultimate 

decision-making authority, Florida law requires that trial courts 

award parents shared parental responsibility “unless the court 

finds that shared parental responsibility would be detrimental to 

the child.” § 61.13(2)(c)2., Fla. Stat. Therefore, the trial court has 

two options at its disposal: 1) grant both parents shared parental 

responsibility and “grant to one party the ultimate responsibility 

over specific aspects of the child’s welfare” or “divide those 

responsibilities between the parties based on the best interests of 

the child”; or 2) grant “sole parental responsibility for a minor 

child to one parent, with or without time-sharing with the other 

parent if it is in the best interests of the minor child.” 

§ 61.13(2)(c)2.a.-b., Fla. Stat.

Accordingly, we reverse and remand so that the trial court 

can 1) make the appropriate findings regarding both parties’ 

ability to pay and need for attorney’s fees; 2) calculate and 

impose pre-judgment interest on its award of retroactive child 

support; and 3) refashion its determination of parental 

responsibility and decision-making authority consistent with its 

findings and the law.

AFFIRMED in part, REVERSED in part, and REMANDED.

M.K. THOMAS, J., concurs; MAKAR, J., concurs in part and 

dissents in part with opinion.

 

case, award a reasonable attorney’s fee after considering the 

financial resources of both parties”). We agree with the dissent 

that a trial court could find that a party’s misconduct 

demonstrates that fees should not be awarded in spite of that

party’s need and the other party’s ability to pay. But this is not 

what occurred here. The dissent argues that the court found that 

both parties were “overly litigious.” If neither party were more at 

fault than the other, then there was no reason for the court to 

simply refuse the former wife’s fee motion without considering 

financial circumstances.
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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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MAKAR, J., concurring in part, dissenting in part.

I concur as to the pre-judgment interest and parental 

responsibility issues but view it as unnecessary for a trial judge 

to go through the burden of determining the parties’ respective 

financial abilities to pay attorneys’ fees when she's already 

decided that both parties’ conduct was overly litigious and 

neither are deserving of fees.

The statute authorizing fee awards doesn’t mandate an 

award of fees; it only says that a

court may from time to time, after considering the 

financial resources of both parties, order a party to pay a 

reasonable amount for attorney's fees, suit money, and 

the cost to the other party of maintaining or defending 

any proceeding under this chapter, including 

enforcement and modification proceedings and appeals.

§ 61.16, Fla. Stat. (2019) (emphasis added). If a court, in its 

discretion, decides to award attorneys’ fees it may do so only 

“after considering the financial resources of both parties” as the 

statute requires. An award of fees without performing this task is 

error, but a denial of fees without performing this task is not. 

For this reason, it makes sense for a trial judge to assess the 

parties’ respective financial resources, as occurred in Rosaler v.

Rosaler, 226 So. 3d 911, 913 (Fla. 4th DCA 2017), because an 

award of partial fees was granted as “a result of Former Wife's 

misconduct” in that proceeding. It seems a waste of effort, 

however, to require a meaningless review of financial abilities in 

cases, like this one, where no fees will be awarded due to mutual

litigation misconduct. In the lion’s share of cases, fees are 

awarded at least in part, making the statutory requirement a key 
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component of the process; most cases, however, won’t involve 

mutual misconduct of such severity that it annuls both parties’ 

claims to fees.

Notably, neither the statute’s language nor caselaw supports 

the requirement, as the majority holds, that trial judges must 

always “consider the parties’ ability to pay and need for 

attorneys’ fees any time it considers whether to award fees 

regardless of whether it actually decides to award such fees.” 

(Emphasis in original). At best, a loosely-phrased sentence in 

Bauchman v. Bauchman, 253 So. 3d 1143, 1148 (Fla. 4th DCA 

2018), which was merely dicta, paraphrased the statute to say 

that a trial court must “evaluate each party's financial resources 

in deciding whether, and to what extent, to award attorney's 

fees.” Read in context, the Fourth District was not imposing 

universally an unnecessary and burdensome evaluation of 

financial resources; no intent to do so is evident anywhere in the 

case. Moreover, Bauchman involved whether a fee award was 

justified where both parties had adequate resources and did not 

involve the issue of mutual misconduct. The same can be said for 

the paraphrastic sentence in Perez v. Perez, 100 So. 3d 769, 771 

(Fla. 2d DCA 2012) (trial court must “consider ‘the relative 

financial resources of the parties’ in evaluating whether an 

award of fees is appropriate.”).

Under the circumstances presented, it was not an abuse of 

discretion for the trial court to have foregone consideration of the 

parties’ financial resources, where doing so was unnecessary and 

was not relevant to the determination of whether fees should be 

awarded in the first place.

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E. Jane Brehany of E. Jane Brehany, P.A., Pensacola, for 

Appellant.

Clay B. Adkinson of Adkinson Law Firm, LLC, DeFuniak 

Springs, for Appellee.