MARGULIES v. MARGULIES, 506 So.2d 1093 (Fla.App. 3 Dist. 1987)

No. 85-2272.District Court of Appeal of Florida, Third District.
May 5, 1987.

Appeal from the Circuit Court for Dade County, Frederick N. Barad, J.

Sams, Ward Newman, Cooper, Wolfe Bolotin and Marc Cooper, Miami, for appellant.

Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow Olin and Joel S. Perwin, Miami, for appellee.

Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.

PER CURIAM.

Following an earlier opinion in this matter reported i Margulies v. Margulies, 491 So.2d 581 (Fla. 3d DCA 1986), the matter came on for hearing to determine the amount of fees that should be awarded, pursuant to section 61.16, Florida Statutes (1985), to counsel for the unsuccessful party (who in this instance happens to be the wife) in the earlier proceeding. The trial court, after receiving extensive evidence, determined the total amount of time expended by four counsel on behalf of the wife.[1] It then determined that a large portion of the time involved was unnecessarily spent because of the demands and actions of the client. The remaining hours it determined were reasonably spent on her behalf.

The court applied the “lodestar” approach as provided i Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145
(Fla. 1985) and then reduced this amount because the efforts of the respective

Page 1094

attorneys had been unsuccessful and ultimately awarded a fee to all four of $72,473.44. This appeal ensued.

The appellant makes no objection to the reduction in the total amount of time spent because of her unreasonable demands and actions. She does contend that once the trial court determined the reasonable amount of time expended in representing her cause, it was required by law to award the full amount of such fee found to be reasonable with no diminution because of the unsuccessful result.[2] We disagree.

Before the “lodestar” approach was adopted by the Supreme Court of Florida, results were a factor in matrimonial fees. Provus v. Provus, 44 So.2d 656 (Fla. 1950); Adams v. Adams, 376 So.2d 1204
(Fla. 3d DCA 1979); Pfohl v. Pfohl, 345 So.2d 371 (Fla. 3d DCA 1977); Donner v. Donner, 281 So.2d 399 (Fla. 3d DCA 1973). The adoption of the “lodestar” criteria in Rowe, supra,
reconfirmed that the results obtained is still to be considered as a factor in awarding fees. It is also a factor to be considered under the Florida Bar Code of Professional Responsibility, D.R. 2-106(B)(4).

Counsel for the appellant contends that as to domestic relation matters and fees awarded pursuant to section 61.16, Florida Statutes (1985), success should not be a factor, as the purpose of the statute is to entitle impecunious clients to have the best available counsel and to hold otherwise might “chill” the opportunity to obtain same. There is certainly some merit to appellant’s argument. However, we think that the results obtained is still a factor in the award of attorney’s fees even under section 61.16, Florida Statutes (1985). We recognize that any determination in the reasonable amount which should be awarded for service because of unsuccessful results would always be subject to review as an abuse of discretion, but as indicated in footnote two, no such attack is made in this proceeding. Therefore, for the reasons above stated, the order on fees be and the same is hereby affirmed.

Affirmed.[3]