Dena Weber, Appellant, v. Bruce Weber, Appellee. (2026)

Dena Weber (“Former Wife”) appeals the denial of her request for attorney fees and costs incurred in successfully defending against Bruce Weber's (“Former Husband”) motion to enforce the parties’ marital settlement agreement (“MSA”). Although the MSA contains a prevailing party fee provision, the trial court denied the Former Wife's request for attorney fees and costs. We reverse.

While married, the parties purchased a waterfront property in Boca Grande, Florida which was conveyed via two deeds—a warranty deed for the dry land containing the residence and a quitclaim deed for the adjacent submerged land. The parties then transferred title to the portion of the Boca Grande property containing the residence to “The David Bruce Weber Irrevocable Family Trust Agreement of 2012” (“Trust”), but never transferred title to the submerged land.

When the marriage dissolved, the parties entered into an MSA that was incorporated into the final judgment. The MSA said nothing about the Boca Grande property. It did, though, contain the following provision regarding attorney fees and costs:

The prevailing party in any proceeding to enforce any provision of this Agreement shall be entitled to an award of attorney's fees and costs incurred in such proceeding.

After the divorce, the Trust's trustee contracted to sell the Boca Grande property to a third party. After doing so, the trustee discovered that title to the submerged land had not been transferred to the Trust. Trying to correct this oversight, the Former Husband moved to enforce the MSA, claiming that since the parties agreed to “execute such other documents as are necessary to carry out the terms of the MSA and the Final Judgment” the trial court retained authority to and should compel the Former Wife to execute a quitclaim deed transferring the submerged land to the Trust. But the Former Wife successfully opposed the motion and requested an award of attorney fees and costs pursuant to the MSA. As argued by the Former Wife, the MSA contains a prevailing fee provision, and she prevailed against the Former Husband's motion to enforce the MSA. Although the trial court ruled swiftly on the Former Husband's motion to enforce the MSA, it reserved ruling on the Former Wife's motion for attorney fees and costs.

After a year passed with no ruling from the trial court on the fee issue, an unrelated controversy arose leading the Former Wife to request certain tax forms and an update to a 529 plan. As to this new controversy, the Former Wife filed a motion to compel and then set a hearing on her new motion and her old request for attorney fees and costs. At the omnibus hearing, the trial court denied both requests. It then entered an unelaborated order denying the Former Wife's request for attorney fees, citing only the Former Husband's motion to enforce and its order denying that motion. This appeal followed, with the Former Wife challenging the trial court's denial of her motion for attorney fees and costs under the prevailing party provision of the MSA.

“A trial court's determination of whether a party prevails on the ‘significant issues’ in litigation so as to designate that party the prevailing party for the purpose of awarding attorney's fees is reviewed for an abuse of discretion.” MacKenzie v. Centex Homes by Centex Real Est. Corp., 281 So. 3d 621, 624 (Fla. 5th DCA 2019). The issue of entitlement to attorney fees based on the interpretation of a contract, however, is reviewed de novo. Wells Fargo Bank Nat'l Ass'n for Morgan Stanley ABS Cap., MSAC 2007-HE3 v. Bird, 234 So. 3d 833, 834 (Fla. 5th DCA 2018); Sacket v. Sacket, 115 So. 3d 1069, 1071 (Fla. 4th DCA 2013). So too is the determination of whether the litigation ended in a tie. See MacKenzie, 281 So. 3d at 624 (explaining that “[t]he determination of whether multiple claims within a lawsuit are separate and distinct for purposes of attorney's fees is a matter of law to be reviewed de novo” (quoting Leon F. Cohn, M.D., P.A. v. Visual Health & Surgical Ctr., Inc., 125 So. 3d 860, 863 (Fla. 4th DCA 2013))).

A prevailing party is one who succeeds “on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Moritz v. Hoyt Enters., Inc., 604 So. 2d 807, 809–10 (Fla. 1992) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). This does not always mean that there must be one prevailing party. At times, the litigation effectively ends in a tie, with each party prevailing in part and losing in part on significant issues in the case. Loy v. Loy, 904 So. 2d 482, 484 (Fla. 3d DCA 2005); see Bauerle v. Bauerle, 371 So. 3d 969, 971–72 (Fla. 5th DCA 2023) (recognizing that litigation can end in a tie where no party is a prevailing party). In those cases, it is within the trial court's discretion to deny each party's request for attorney fees. Schoenlank v. Schoenlank, 128 So. 3d 118, 121 (Fla. 3d DCA 2013) (citing Loy, 904 So. 2d at 484). But such is not the case here.

The sole issue raised in the Former Husband's motion to enforce was whether the Former Wife violated the MSA by not transferring her interest in the submerged land to the Trust. The trial court rejected this claim entirely, ostensibly because the MSA said nothing about the Boca Grande property. The Former Wife, consequently, prevailed on a significant issue and, as a result, the trial court abused its discretion by denying her request for attorney fees and costs under the MSA.¹

The arguments raised in defense of the trial court's ruling do not undermine the foregoing conclusion. First, the fact that the Former Husband's motion to enforce was denied because the MSA contained no provisions regarding the Boca Grande property does not preclude the Former Wife from recovering her attorney fees and costs under the MSA. The Former Husband moved to enforce the MSA and his attempt to do so was denied. This was enough to entitle the Former Wife to attorney fees and costs for defending against the motion to enforce.

Further, this is not a situation where the Former Wife merely obtained a procedural victory. It was more than that. As discussed above, the issue raised in the Former Husband's motion to enforce was whether the Former Wife violated the MSA by not transferring her interest in the submerged land to the Trust. The trial court found no violation and so the Former Wife prevailed on a significant issue (and also avoided the Former Husband's request for attorney fees and costs under the MSA). That the Former Husband may obtain the relief he sought in his motion to enforce through another cause of action does not lessen the legal significance of the Former Wife's substantive victory over the Former Husband's claim that she violated the MSA. Therefore, the Former Wife's victory was not simply procedural, leaving her exposed to the same claim; it was a complete victory over that claim, which triggered her entitlement to attorney fees and costs under the MSA. Cf. Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034, 1041–43 (Fla. 2d DCA 2013) (finding defendant was not the prevailing party in a foreclosure action when the plaintiff voluntarily dismissed its claims after a third party successfully foreclosed on its superior mortgage lien, rendering plaintiff's claims moot); Residents for a Better Cmty. v. WCI Cmtys., Inc., 291 So. 3d 632, 634 (Fla. 2d DCA 2020) (reversing award of attorney fees because “WCI did not achieve its objective of making the litigation go away as a result of the [voluntary] dismissal—the same claims remained pending against WCI”); Torruella v. Nationstar Mortg., LLC, 308 So. 3d 674, 677 (Fla. 5th DCA 2020) (affirming denial of defendant's request for attorney fees under prevailing party provision in contract where she did not prevail on a “significant issue” in the foreclosure action because “the trial court only decided whether service of process was sufficient, not whether the foreclosure action had merit”).

Finally, this is not a situation where the litigation ended in a tie. Post-judgment litigation, especially in cases involving an MSA, is unique in that parties may come to court many times following the entry of the final judgment to resolve discrete issues that may arise as the parties attempt to comply with the MSA. Because of this unique nature, one discrete issue, such as a motion to enforce a provision in the MSA, may arise, be resolved, and followed by another discrete issue unrelated to the prior issue. That is what occurred here. The Former Husband moved to enforce the MSA and lost. That was the end of that post-judgment litigation. The only reason the Former Husband can colorably argue that there was a tie is because of the timing of the trial court's ruling on the Former Wife's request for attorney fees and costs. By ruling on that request and the discovery motion at the same time, it does appear as though the litigation resulted in a tie. But when considering the entire procedural history, that is simply not the case. As discussed above, the Former Wife prevailed over the Former Husband's motion to enforce the MSA. This was a distinct issue that was litigated and resolved long before the Former Wife even filed her discovery motion. Therefore, it should not be conflated with the Former Wife's discovery motion, especially when the order denying the Former Wife's fee demand only referenced the Boca Grande property issue and did not mention the subsequent discovery issue. See River Bridge Corp. v. Am. Somax Ventures, 76 So. 3d 986, 989 (Fla. 4th DCA 2011) (“[W]here each claim is separate and distinct and would support an independent action, ․ the prevailing party on each distinct claim is entitled to an award of attorney's fees for those fees generated in connection with that claim.” (citing Folta v. Bolton, 493 So. 2d 440, 442 (Fla. 1986))); cf. Schoenlank, 128 So. 3d at 121 (affirming denial of parties’ requests for attorney fees under marital settlement agreement where the two major issues that were tried together: the downward modification of former husband's support obligations and the former wife's collection of delinquent equitable distribution payments, resulted in a tie, with each party winning and losing various aspects of each issue).

For these reasons, we reverse the trial court's order denying the Former Wife's request for attorney fees and costs under the MSA and remand the matter for further proceedings to determine how much the Former Wife is entitled to recover against the Former Husband for successfully defending against his motion to enforce the MSA.

REVERSED and REMANDED.

I concur fully in the majority opinion. I write separately to expand on the majority's observation that section 61.16, Florida Statutes, is not at issue in the enforcement proceedings that gave rise to this appeal. While we have not addressed the interplay between this statute and a prevailing party fee provision in a marital settlement agreement, at least three of our sister courts have. See, e.g., Dean v. Dean, 655 So. 2d 243, 244 (Fla. 3d DCA 1995); Vitale v. Vitale, 31 So. 3d 970, 973 (Fla. 4th DCA 2010); Ulbrich v. Coolidge, 935 So. 2d 607, 608 (Fla. 4th DCA 2006); Avellone v. Avellone, 973 So. 2d 1171, 1172 (Fla. 1st DCA 2007). And those courts have concluded that section 61.16 does not apply in enforcement cases involving a marital settlement agreement with a prevailing party provision. I respectfully question this conclusion as an absolute proposition. While parties may be able to waive their right to pursue section 61.16 fees expressly via contract, nothing contained in a standard prevailing party fee provision like the one here ² suggests waiver.

Section 61.16(1) permits a trial court, “from time to time,” to order a party to pay an opposing party a reasonable amount of that opposing party's attorney's fees “after considering the financial resources of both parties.” The statute applies to enforcement proceedings. See § 61.16(1) (“The court may ․ 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.” (emphasis added)).

In the seminal decision analyzing section 61.16, the Florida Supreme Court declared that “[a]ny determination regarding an appropriate award of attorney's fees in proceedings for dissolution of marriage, support, or child custody begins with section 61.16.” Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997) (emphasis added). Section 61.16’s purpose “is to ensure that both parties will have a similar ability to obtain competent legal counsel.” Id. (citation omitted). Thus, courts must construe section 61.16 liberally “to allow consideration of any factor necessary to provide justice and ensure equity between the parties.” See id. at 700.

But section 61.16 is not the only way for a party to an enforcement proceeding to recover its attorney's fees. Indeed, chapter 61 itself provides for another basis. See Lett v. Lett, 408 So. 3d 167, 171 (Fla. 5th DCA 2025) (rejecting section 61.16 need and ability to pay analysis in awarding fees for enforcement proceeding based on former wife's refusal to honor time-sharing schedule under section 61.13(4)(c)2.). And relevant here, each of our sister courts have applied prevailing party fee provisions in marital settlement agreements. E.g., Avellone, 973 So. 2d at 1172; Christiansen v. Christiansen, 291 So. 3d 1016, 1017 (Fla. 2d DCA 2020); Gilbert v. Gilbert, 305 So. 3d 735, 739–40 (Fla. 3d DCA 2020); Witt v. Witt, 568 So. 2d 539, 539 (Fla. 4th DCA 1990); Crews v. Crews, 629 So. 2d 1094, 1095 (Fla. 5th DCA 1994).

The Florida Supreme Court has recognized that a marital settlement agreement is a contract, which is subject to interpretation like any other contract. See Crawford v. Baker, 64 So. 3d 1246, 1251 (Fla. 2011) (citing Levitt v. Levitt, 699 So. 2d 755, 756 (Fla. 4th DCA 1997)). It has held that parties can enter into a prenuptial agreement that waives their right to recover attorney's fees during their ensuing marriage by providing for prevailing party attorney's fees in actions seeking to enforce the agreement. See Lashkajani v. Lashkajani, 911 So. 2d 1154, 1156 (Fla. 2005). In dicta, it has also separately recognized that the prevailing party provision of a marital settlement agreement may govern a party's right to fees following an unsuccessful attempt to set it aside. See Bane v. Bane, 775 So. 2d 938, 943 & n.7 (Fla. 2000) (citing Spano v. Spano, 698 So. 2d 324, 325 (Fla. 4th DCA 1997)). Finally, it has recently upheld a fee-shifting provision in a marital settlement agreement. See Levy v. Levy, 326 So. 3d 678, 681–82 (Fla. 2021).

Set against this backdrop, I must concede that prevailing party fee provisions in divorce-related agreements are enforceable. Indeed, the Florida Supreme Court and our sister courts have all observed that trial courts lack discretion to decline to enforce these provisions, “even if the challenging party brings a meritorious claim in good faith.” See Lashkajani, 911 So. 2d at 1158; see also Gilbert, 305 So. 3d at 739; Conway v. Conway, 111 So. 3d 925, 928 (Fla. 1st DCA 2013); Mott v. Mott, 800 So. 2d 331, 333 (Fla. 2d DCA 2001); Rose v. Rose, 615 So. 2d 203, 204 (Fla. 4th DCA 1993); Jacobson v. Jacobson, 595 So. 2d 292, 294 (Fla. 5th DCA 1992).

But the Florida Supreme Court does not appear to have addressed a situation where in response to one party's efforts to invoke such a provision, the other moves for fees under section 61.16.³ At least three of our sister courts have, and each has concluded that section 61.16 does not apply in an enforcement action under a prevailing party fee provision. This conclusion has its genesis in the Third District. See Dean, 655 So. 2d at 244. The Dean court declared that in an appeal of a trial court order denying fees under a prevailing party fee provision in a marital settlement agreement, “[w]e agree with the husband that the right to attorney's fees is governed only by the contract and that section 61.16, Florida Statutes (Supp. 1994), and the conditions to an award under that statute are therefore irrelevant.” See id. To support this contention, the Dean court cited a Fifth District case and a Fourth District case, neither of which mentioned section 61.16. See id. (citing Crews, 629 So. 2d at 1095; Witt, 568 So. 2d at 539).

Other courts have agreed with Dean’s unsupported conclusion. See, e.g., Ulbrich, 935 So. 2d at 608 (“[I]n cases involving a marital settlement agreement with a prevailing party provision, section 61.16, Florida Statutes, cannot be used as a basis for an award of attorney's fees.” (citing Zakian v. Zakian, 837 So. 2d 549, 551 (Fla. 4th DCA 2003); Dean, 655 So. 2d at 244)); Avellone, 973 So. 2d at 1172 (“Although section 61.16(1), Florida Statutes (2006), provides that a court may, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney's fees to the other party in dissolution of marriage, support, and custody cases, this statute and its focus on the parties’ financial resources is irrelevant in this case given the parties’ agreement.” (citing Ulbrich, 935 So. 2d at 608; Dean, 655 So. 2d at 244)); Vitale, 31 So. 3d at 973.

Section 61.16’s plain language mandates its applicability to enforcement proceedings. Thus, I cannot conclude that the mere existence of a prevailing party fees provision in a marital settlement agreement automatically renders the statute inapplicable. Perhaps, subject to traditional contract defenses like fraud, duress, mistake, or illegality, parties to a marital settlement agreement could forfeit their right to pursue section 61.16 fees. Parties to an arm's-length agreement can, of course, expressly waive all manner of rights, provided it is done knowingly and voluntarily. See Bellaire Sec. Corp. v. Brown, 168 So. 625, 639 (Fla. 1936) (“A party may waive any right to which he is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the Constitution.”); De Campos v. Ferrara, 90 So. 3d 865, 869 (Fla. 3d DCA 2012) (“Florida courts generally have held that a party to a property settlement agreement can waive his statutory right to an award of attorney's fees in an enforcement proceeding, but such waiver depends upon express language to that effect.”); Sasnett v. Sasnett, 683 So. 2d 177, 178 (Fla. 2d DCA 1996) (“In order to find that a waiver of rights has occurred, the language used in the agreement must clearly and unambiguously express waiver or the language must be such that an interpretation of the agreement as a whole can lead to no other conclusion but waiver.”). But nothing about a boilerplate prevailing party fee provision in a marital settlement agreement, like the one in this case, suggests to me that the right to seek section 61.16 fees is waived.

This record shows that the parties had no need for attorney's fees to secure competent legal counsel. But if they did, I think the trial court should have considered the request. As the majority opinion concludes, this is a question for another day, but I respectfully submit that it is one worth answering.

FOOTNOTES

1.   It should be noted that neither party sought attorney fees under section 61.16, Florida Statutes. Thus, nothing in this opinion should be read as stating that the presence of a prevailing party provision like the one here precludes a party from seeking attorney fees under section 61.16. That matter will be left for a case that raises that precise issue.

2.   “The prevailing party in any proceeding to enforce any provision of this Agreement shall be entitled to an award of attorney's fees and costs incurred in such proceeding.”

3.   The Lashkajani Court had the closest brush with this issue. The Lashkajanis’ prenuptial agreement waived their right to seek fees during a divorce, but it allowed for prevailing party's fees if someone tried to violate the agreement. See Lashkajani, 911 So. 2d at 1155 n.1. When the former wife tried to set aside the agreement, the trial court denied the request and found the agreement valid. See id. at 1155. Both parties sought fees, the former husband under the prenuptial agreement's prevailing party fees provision, and the former wife under section 61.16. The trial court granted both motions, but the Second District reversed the husband's award, finding the fee waiver unenforceable for public policy reasons. See id. at 1156. The Florida Supreme Court found the prenuptial agreement's prevailing party fee provision enforceable, but it did not directly address section 61.16 because the former husband dropped his intermediate appellate challenge to the former wife's fee award on those grounds. See id. at 1160; Lashkajani v. Lashkajani, 855 So. 2d 87, 89 n.2 (Fla. 2d DCA 2003).

NARDELLA, J.

WOZNIAK, J., concurs. TRAVER, C.J., concurs and concurs specially, with opinion