Jeremiah Simpkins, Appellant, v. Kristina Nusser, Appellee. (2026)

On En Banc Consideration of Motions for Appellate Attorney’s Fees

In this case involving the appeal of a final judgment of paternity, both parties have moved for appellate attorney's fees under section 742.045, Florida Statutes (2024). In McNulty v. Bowser, 233 So. 3d 1277, 1278–79 (Fla. 5th DCA 2018), we held that this statute authorized an award of attorney's fees reasonably incurred in an appeal from a judgment in a paternity action.

Since our decision in McNulty, two of our sister courts have reached the opposite conclusion about this statute and have certified conflict with McNulty. See C.T. v. T.G., 397 So. 3d 219, 222–23 (Fla. 6th DCA 2024) (“Because we can find nothing in the text of section 742.045 to authorize an award of attorney's fees incurred on appeal, the parties’ respective requests for appellate attorney's fees on this basis are denied.”); Perez-Palma v. Rodriguez, 427 So. 3d 1059, 1060 (Fla. 3d DCA 2025), reh'g denied (June 18, 2025) (aligning itself with the Sixth District's opinion in C.T. v. T.G. and denying both parties’ motions seeking appellate level attorney's fees under section 742.045), rev. granted, Perez-Palma v. Rodriguez, SC2025-0905, 2025 WL 3171795 (Fla. Oct. 22, 2025).

In light of the opinions in both C.T. and Perez-Palma, and their respective analyses, we have reconsidered our decision in McNulty and now recede from it. We agree with these decisions from the Sixth District and Third District and thus hold that section 742.045, as presently written, does not authorize an award of appellate attorney's fees in paternity actions. We therefore deny the parties’ respective motions for appellate attorney's fees.

Lastly, we certify conflict with Beckford v. Drogan, 216 So. 3d 1 (Fla. 4th DCA 2017), and B.K. v. S.D.C., 122 So. 3d 980 (Fla. 2d DCA 2013), which hold that an award of appellate attorney's fees may be obtained under section 742.045.

Motions Denied; Conflict Certified.

At issue is whether appellate attorneys’ fees in paternity actions are recoverable under section 742.045, Florida Statutes, which has stated since its enactment in 1991 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.” § 742.045, Fla. Stat. (2026); see Ch. 91-246, § 7, Laws of Fla. Florida appellate courts currently disagree on how to interpret the statute, with some courts flipping—and in this case flopping—on the statute's scope over the past 25 years; all ostensibly apply “plain meaning” principles of statutory interpretation but come to different results. Given the closeness of the ongoing interpretive debate, I concur in result, but with doubts, both procedurally and substantively, about overturning (again) our precedent without a legislative directive as to section 742.045’s scope or a ruling from our supreme court, which is currently considering the identical issue.

To begin, the prevailing view of the statute's language in the district courts of appeal as of 2024 was to allow appellate fees. The central point was that the statute—although not explicitly including appellate fees—authorizes such fees because it applies to “any proceeding” under Chapter 742 (which deals with “Determination of Parentage”), and paternity appeals are “proceedings under this chapter.” See Pimienta v. Rosenfeld, No. 3D21-0792, 2021 WL 4311667, at *1 (Fla. 3d DCA Aug. 25, 2021) (awarding “Appellate Attorney's Fees” under section 742.045); E.G. v. G.V., No. 3D21-0121, 2021 WL 1688022, at *1 (Fla. 3d DCA Mar. 11, 2021) (same); McNulty v. Bowser, 233 So. 3d 1277, 1279–80 (Fla. 5th DCA 2018); Beckford v. Drogan, 216 So. 3d 1, 1 (Fla. 4th DCA 2017) (same); B.K. v. S.D.C., 122 So. 3d 980, 982–83 (Fla. 2d DCA 2013) (same). At the start of 2024, no district court of appeal precluded an award of appellate fees under section 742.045.

Two recent decisions, however, have interpreted the statute to preclude appellate fees. This view recognizes that an appeal is a “proceeding” and would otherwise fall under the statute's scope, but that an appeal is not a proceeding “under this chapter,” i.e., under Chapter 742. See Perez-Palma v. Rodriguez, 427 So. 3d 1059, 1060 (Fla. 3d DCA 2025) (adopting the view that the phrase “any proceeding under this chapter” does not include appeals); see also C.T. v. T.G., 397 So. 3d 219, 222 (Fla. 6th DCA 2024) (concluding that the phrase “any proceeding” is “obviously narrowed by the phrase ‘under this chapter’ ” such that only circuit court proceedings are within the fee statute). These decisions adopted the reasonings of the dissenting opinions in McNulty and Beckford.¹

Because the Third District and this Court (in this case) have shifted positions, the now prevailing view—by a 3-2 margin—is that appellate fees are impermissible. Over section 742.045’s decades-long life, seventeen appellate judges have held that it permits appellate fees, twenty-three have held that it does not (this includes votes in this case), and six have voted both ways, reflecting the closeness of the doctrinal division.

A historical point bears noting: Over twenty-five years ago, this Court was the first to address whether section 742.045 allowed for appellate fees. A three-judge panel rejected such an interpretation, holding that the “provision for fees in section 742.045 cannot be bootstrapped into supporting an award of temporary appellate fees.” Starkey v. Linn, 727 So. 2d 386, 388 n.3 (Fla. 5th DCA 1999).

Almost twenty years later, however, our court in McNulty receded from Starkey by a 9-2 vote, concluding under principles of “plain meaning” that the statute included an appellate proceeding. 233 So. 3d at 1279. The court flipped based on its interpretative view that, “[b]ecause section 742.045 unambiguously provides for an award of attorney's fees for maintaining or defending any proceeding under this chapter, there is no need to resort to rules of statutory construction to ascertain the legislative intent behind the statute.” Id. Moreover, because the “Legislature has not specifically defined ‘proceeding’ in chapter 742, this term should be given its plain and ordinary meaning.” Id. Because an “appellate court clearly is a tribunal from which a party may seek redress” and “an appeal is but part of the action being appealed,” it concluded that the mother-appellant—who was defending her rights arising from a “final judgment of paternity entered under chapter 742”—was “entitled to an award of appellate attorney's fees under the plain language and meaning of section 742.045.” Id. (internal citation omitted). In short, the same text—viewed through a different lens—allowed appellate fees to be recoverable.

The majority opinion in this case, which recedes from McNulty, is a complete turn of the wheel back to our 1999 jurisprudence: a 2018 flip followed by today's flop. It is doubtful, given the historically close interpretative debate, whether another U-turn is desirable, substantively or procedurally. It would be best procedurally to stay the course and await word from our supreme court, which has not previously addressed the issue of appellate fees under section 742.045,² but recently accepted review on the interpretive question. See Perez-Palma, 427 So. 3d at 1060, rev. granted, Perez-Palma v. Rodriguez, No. SC2025-0905, 2025 WL 3171795, at *1 (Fla. Oct. 22, 2025). We ought to simply affirm McNulty, certify conflict, and let our supreme court colleagues provide conclusive direction. For this reason, it is dubious that much is achieved by reversing course and returning to our 1999 precedent. Given that the split of authority is based in large measure on defensible methods of statutory interpretation (both relying on textual plain language methodology), why abandon an interpretation that our supreme court might ultimately adopt? Why risk potential embarrassment from changing course (a second time) when our supreme court will soon tell us which path to take?

We are not alone in this venture. The Fourth District has also flipped (but not yet flopped) since 1999. In Gilbertson v. Boggs, the court held that Chapter 742 has “no authority under that chapter for appellate fees.” 743 So. 2d 123, 128 (Fla. 4th DCA 1999). As in Starkey, the Fourth District initially said no to appellate fees. Almost two decades later, however, the en banc court—in a 6-5 decision—receded from Gilbertson based on the majority's application of the “plain meaning of the first sentence of section 742.045, Florida Statutes (2016), which has remained identically worded for more than 25 years.” Beckford, 216 So. 3d at 1. The “straightforward” language of the statute “was and remains unambiguous and, in fact, is crystal clear. This court has neither the function nor prerogative to speculate on—or engage in—construction of a statute that continues to convey an unequivocal meaning.” Id. Because the “statute allows for the award of attorney's fees in ‘any proceeding under this chapter’ ․ [i]t is axiomatic that this would include any appellate proceedings necessary to maintain or defend an action under the chapter.” Id. In short, the majority interpreted the word “any” to include any type of proceeding, both trial and appellate. It also noted that section 742.045’s language should not be narrowed by reference to another similar statute that the Legislature amended to include appellate fees. Id. (holding that the Gilbertson decision “wrongly concluded that because the Legislature later enacted a specific inclusion of appellate attorney's fees in section 61.16, Florida Statutes, it must have impliedly rejected such an inclusion of appellate fees in section 742.045”). Judge Klingensmith's persuasive dissent, joined by four colleagues, formed the basis for the recent decisions of the Third and Sixth Districts that restricted the statute to only trial court proceedings.

It is worth noting that in addition to plain meaning analysis, judicial construction of section 742.045 has been based on interpretation of the identical language in the marital dissolution statute (section 61.16, Florida Statutes) as allowing appellate fees. As Judge Warner noted in a concurring opinion, the language of section 61.16—before its amendment to specifically include appellate fees—was identical to 742.045 and had been judicially interpreted to include appellate fees.

In enacting section 742.045, the Legislature copied the language of section 61.16 and thus is presumed to have known and approved of the judicial construction that the statute includes the authority to award appellate attorney's fees. In fact, the Legislature's subsequent specific inclusion of appeals in section 61.16 merely reinforces the judicial construction of the statute for over twenty-five years. Thus, section 742.045 should be interpreted consistently with the judicial construction given to the identical section 61.16: that appellate attorney's fees are included within its provision.

This would be consistent with other statutes which provide for attorney's fees but do not specifically mention appellate fees. For instance, although section 57.105, permitting the assessment of attorney's fees where the claims are frivolous, does not mention appeals, the supreme court applied the statute to appellate proceedings. Moreover, section 59.46, Florida Statutes, provides that, “[i]n the absence of an expressed contrary intent, any provision of a statute ․ providing for the payment of attorney's fees to the prevailing party shall be construed to include the payment of attorney's fees to the prevailing party on appeal.” Although section 742.045 is not a prevailing party attorney's fees statute, the legislative directive is clear that the Legislature intends to include attorney's fees on appeal within statutes permitting the assessment of attorney's fees, unless it specifically expresses a contrary intent. Here there is no contrary intent.

McPherson v. Bittner, 126 So. 3d 1230, 1231–32 (Fla. 4th DCA 2012) (Warner, J., concurring specially) (internal citations omitted and emphasis added). In short, the “case law prior to the inclusion of the word ‘appeals’ interpreted section 61.16 as permitting an award of appellate fees.” Id. (Warner, J., concurring specially).

The Second District was persuaded by Judge Warner's opinion. In B.K., the court held that when the Legislature enacted section 742.045 it was presumed to have known that the identical statute, section 61.16, had been judicially interpreted to include appellate fees. 122 So. 3d at 983. It was thereby logical that section 742.045’s identical language likewise supported appellate fee awards. “Had the legislature intended the statutes to be interpreted differently, it would have expressed such an intent in enacting section 742.045; instead it chose to mirror the language of section 61.16.” Id. As such, it held that “an award of appellate attorneys’ fees may be obtained under section 742.045.” Id. The point is that the Legislature—if it disagreed with judicial interpretations of section 742.045 that allowed appellate fees—has had over two decades to modify the statute, but it has not. Change has only occurred by recent judicial recession from precedent, thereby creating the current conflict and shifting the responsibility to the supreme court or the Legislature to take action.

It is possible, if not likely, that the Legislature will weigh in and clear up the conflict that now exists. In its 2026 session, the Florida House and Senate considered bills that would amend section 742.045 (and its counterpart section 61.16) to include appellate fees via companion bills: Senate CS/CS/SB 644 and CS/CS/HB 413 (titled “Attorney Fees, Suit Money, and Costs”). The purpose of both bills was to address the current split of authority. The relevant language in both bills would (a) expressly provide for appellate attorney fees and (b) allow that an “award of attorney fees, suit money, and costs, whether temporary or final, may be awarded retroactively and prospectively as equity requires.” Fla. CS for CS for SB 644 §§ 1 & 2 (2026) (proposed amendments to Fla. Stats. §§ 61.16 & 742.045); Fla. CS for CS for HB 413 §§ 1 & 2 (2026) (proposed amendments to Fla. Stats. §§ 61.16 & 742.045). The House bill passed by 110-0 vote and was sent to the Senate. The Senate bill passed by 11-0 vote in the Judiciary Committee, by 7-0 vote in the Appropriations Committee, but died in the Rules Committee as the session ended.

It was and continues to be prudent to stay the course and await a legislative fix, particularly when no legislator voted against the remedial legislation, which would not only explicitly make appellate fees permissible under section 742.045 but, more importantly, make such appellate fees awardable “retroactively and prospectively as equity requires.” This provision would seem to allow a retroactive award of appellate attorney fees in cases such as Perez-Palma (pending at the Florida Supreme Court) provided equity so required.

Admittedly, reading legislative tea leaves is hazardous; who can predict what the Legislature might eventually do, if anything? But overturning precedent without notice and denying fees to appellate attorneys, who have worked hard for their clients and relied on decades-old precedent, would unfairly pull the rug out from under them. We have not notified or allowed input from the parties in this case, who will be surprised to learn that the curtain has fallen on appellate fees in this District. It is better to give the parties a degree of due process via notice and briefing when we internally are deciding to change course in a major way that affects parents and kids in paternity actions. A legitimate expectation exists among practitioners that appellate fees are recoverable in paternity cases, which require legal expertise to protect children. It is thereby better to follow precedent, award fees if warranted, and modify precedent when either the Legislature clarifies the statute or our supreme court tells us on which side of the statutory interpretation divide we must fall. At a minimum, if McNulty is given the boot, the en banc court should prospectively recede from it, allowing the pending motions in this case (and pipeline cases) to be assessed under current law in fairness to the parties (and their attorneys) in these exceptionally important cases for which legal counsel is critical for the children affected.

FOOTNOTES

1.   See McNulty v. Bowser, 233 So. 3d 1277, 1280 (Fla. 5th DCA 2018) (Eisnaugle, J., dissenting) and Beckford v. Drogan, 216 So. 3d 1, 2–3 (Fla. 4th DCA 2017) (Klingensmith, J., dissenting).

2.   In P.A.G. v. A.F., the supreme court noted the 1991 enactment of section 742.045, but was only called upon to interpret the existing language of another provision, section 742.031, whose “plain language” “only authorize[d] attorney's fees for the determination of paternity proceeding and does not address the award of fees for subsequent proceedings.” 602 So. 2d 1259, 1261 (Fla. 1992). The court noted that the legislative enactment of section 742.045 was in reaction to the limited reach of section 742.031, and that 742.045 “specifically authorizes an award of attorney's fees in any proceeding under chapter 742, including enforcement and modification proceedings.” Id. at 1261 n. 1. The question of whether appellate fees were within the new statute's reach was not addressed.

Per Curiam.

Jay, C.J., and Wallis, Lambert, Edwards, Eisnaugle, Harris, Soud, Boatwright, Kilbane, and MacIver, JJ., concur. Makar, J., concurs in result dubitante and dissents in part, with opinion.