general question re. remands and reversals

[jyoung]

What is the name of your state? Florida

I won a pro se appellate reversal and remand of a large attorney's fees and costs award in a family matter; the appellate court ruled that more evidence was required to support the award and the necessity of the fees. More than eighteen months after the date of the remand the matter was finally heard before the same judge, he slapped me down again after getting an itemized bill from the ex's attorney. He did not allow any testimony on my current ability to pay or the ex's need for fees and he agreed with my opponent that they should consider nothing taking place after the original judgment date. The Florida statutes clearly state "present ability to pay" in these matters. I haven't received the final judgment yet but expect to file for a rehearing and then another appeal based on this. My current financial situation includes unemployment since Sept. 04 when my position was eliminated and a Chap. 7 bankruptcy I was forced into by the fees award taking an additional $500 a month from my paycheck. (there's an adversary case pending in BK as well).

My question is whether the judge was within his rights to not consider present ability to pay....

 

[seniorjudge]

"...My question is whether the judge was within his rights to not consider present ability to pay...."

If I understand your post, you lost in the court of appeals. The court of appeals uses the evidence that was introduced at the trial of the lawsuit.

So, yes, your present ability to pay is irrelevant to the court of appeals.

If I misunderstood what you are asking, then rephrase your question.

 

[jyoung]

Thanks for the quick reply, sorry for any confusion, I stated that I had won the reversal and remand, the appellate mandate instructed that on remand the lower court must make additional findings to support the award; a footnote in the appellate mandate stated that it is "the burden of the party seeking the fees to prove with evidence (the) reasonableness and necessity of the fees".

My concern is whether or not a statuatory requirement to consider evidence of "current ability to pay" and the related obverse "need for fees" can be disregarded by the judge during the remand hearing....

 

[seniorjudge]

Gotcha.

I see what the problem is now and I can tell you that I do not know.

The lawyer has the burden to prove with evidence the reasonableness and necessity of the fees. You are asking, "Okay, if the guy proves that, then I want to introduce evidence that I cannot now pay it, regardless of what the evidence was at the trial."

This is a pretty fine point of evidence in your state that I couldn't even begin to guess.

It looks like (using my state's evidentiary rules) that you are on thin ice. If the finding of your ability to pay at the trial level has not been disturbed, then the judge on remand will not (and cannot) reopen that question.

 

[jyoung]

Understood...I'll have to work on some case law research and see what I can dig up...my fallback is that the BK judge is not under the obligation to turn back the clock and will consider current ability to pay....if my opponent can show the fees and costs obligation to be related to child support, which is a whole other matter altogether to be tried in the adversary case..

 

[badapple40]

Did you make a profer at the time of all of this as to what you would have put in if allowed?

 

[jyoung]

yep, I offered testimony as to the current state of affairs, it was objected to and sustained but it's on the record that I'm unemployed and in bankruptcy....I believe the error, if I can prove one, was preserved, but it's also a case of de novo interpretation of the law....there wasn't sufficient evidence for the the appeals court last time and the question is whether limitations should be imposed.