SUPREME COURT OF FLORIDA CASE NO. SC09-104 L.T. NO. 3D07-2159 BEGONA LOPEZ, Petitioner, vs. DAVID RAMOS, Respondent RESPONDENT’S ANSWER TO JURISDICTIONAL BRIEF OF PETITIONER ` Robert F. Kohlman, Esq. BAKER & MCKENZIE, LLP 1111 Brickell Avenue Suite 1700 Miami, FL 33131 Telephone Number: (305) 789-8900 Facsimile Number: (305) 789-8953 Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, FL 33131 - 1 - TABLE OF CONTENTS Page Table of Citations 3 Statement of the Case and of the Facts 4 Standard of Review 5 Argument 5 Certificate of Type Size and Font 8 Certificate of Service 9 Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, FL 33131 - 2 - TABLE OF AUTHORITIES Cases Page Bible v. Bible, 597 So. 2d 359 (Fla. 3d DCA 1992) 4, 7 Gaudette v. Gaudette, 890 So. 2d 1161 (Fla. 5th DCA 2004) 4, 6-7 Lowman v. Lowman, 724 So. 2d 648 (Fla. 2d DCA 2004) 6 Margulies v. Margulies, 645 So. 2d 54 (Fla. 4th DCA 1994) 6 Nichols v. Nichols, 418 So. 2d 1198 (Fla. 5th DCA 1982) 6 Other Authorities Webster’s Dictionary, Second Edition (1984) 5 Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, FL 33131 - 3 - STATEMENT OF THE CASE AND OF THE FACTS The Petitioner, Former Wife below, seeks review of a two-paragraph opinion of the Third District Court of Appeal that reversed an award of $343,398.67 for attorney’s fees and costs resulting from the parties’ dissolution action. The full text of the relevant paragraph is as follows: The former husband, David Ramos, appeals from an order awarding the former wife, Begona Lopez, her attorney’s fees, costs and suit money in this dissolution of marriage action. Because the final judgment placed the parties in financially equipoised positions, we reverse. See Gaudette v. Gaudette, 890 So. 2d 1161 (Fla. 5th DCA 2004) (ex-husband should not have been ordered to pay ex-wife’s attorney’s fees where the parties’ were left in relatively equal financial positions); Bible v. Bible, 597 So. 2d 359 (Fla. 3d DCA 1992) (trial court did not abuse its discretion when it ordered each party to pay their own fees after a near equal distribution of property). (emphasis added). Petitioner filed both a Motion for Rehearing and a Motion for Rehearing En Banc, both of which were denied.1 Ten of the District Court of Appeals judges concurred in the denial of the Motion for Rehearing En Banc; the remaining judge recused himself. 1 The District Court did grant the Petitioner’s Motion for Clarification to address an issue not relevant to this Appeal. Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, FL 33131 - 4 - STANDARD OF REVIEW This Court has discretionary jurisdiction to review a decision of a District Court of Appeal that “expressly and directly” conflicts with a decision of another District Court of Appeal or this Court on the same question of law. It must be shown that the decisions, on their face, are irreconcilable. ARGUMENT The Petitioner’s sole basis for an alleged conflict is the following sentence: “Because the final judgment placed the parties in financially equipoised positions, we reverse.” The Petitioner extrapolates that the District Court considered the equal property division only, but not the relative income of the parties. However, there are no findings of fact in the District Court opinion to support the Petitioner’s interpretation. The Petitioner is attempting to create conflict where none exists by creating facts that do not exist in the District Court opinion. “Equipoise” is defined by Webster’s Dictionary as “Equilibrium : balance.” Webster’s Dictionary, pg. 236, Second Edition (1984). Even the Petitioner admits that “equipoise” means an “equal distribution of wages.” Jurisdictional Brief, pg. 7. Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, FL 33131 - 5 - Applying these definitions to the word “equipoise,” it is clear that the District Court found that since the financial positions of the two parties— which necessarily includes both income and assets—were equal, there was no entitlement to fees under Florida Statutes Section 61.16. This is consistent with the holdings of the cases with which the Petitioner claims conflict: Lowman v. Lowman, 724 So. 2d 648 (Fla. 2d DCA 2004); Margulies v. Margulies, 645 So. 2d 54 (Fla. 4th DCA 1994), and Nichols v. Nichols, 418 So. 2d 1198 (Fla. 5th DCA 1982). In all those cases, fees were awarded because one party had a “superior financial position,” not an equipoise one. Margulies, 645 So. 2d at 54. It is illustrative that the Gaudette, one of the cases cited by the Third District in support of its finding that the Final Judgment below placed the parties in “financially equipoised positions,” reversed an award of fees where the monthly income of the parties was equal. As the Fifth District held: Those computations indicate that [the Husband], the wage earner, has less remaining income than his dependent ex-wife after alimony at $1,000 per month is paid, but does not include the reduction of federal income taxes that will be available after he deducts on his federal income tax return the alimony payments made to [the Wife]. In this instance, the monthly income is almost equal and we will not disturb the award of alimony nor the amount. The equality of income available to each of the parties affects the trial court’s finding that [the Husband] has substantially greater Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, FL 33131 - 6 - ability than [the Wife] to pay attorney’s fees, costs and expenses resulting from the litigation. We cannot find other record support for any resources available to the husband that would place him in a substantially greater position to pay those fees. Accordingly, we vacate paragraph 11 of the Final Judgment of Dissolution of Marriage that award’s fees to the wife and find that their relatively equal financial positions require that each share their respective fees, costs and expenses. Gaudette, 890 So. 2d at 1162 (emphasis added). Similarly in Bible, also cited in the District Court opinion, the appellate court upheld the denial of fees to the Wife because, after considering both the alimony award and equitable distribution, “the evidence adduced at trial established that the husband was not in any better position than the wife to per her $25,000 attorney fee bill.” Bible, 597 So. 2d at 359. The cases cited by the Respondent as being in “conflict” with the District Court’s opinion have similar holdings to Gaudette and Bible; namely, fees will only be awarded where there is a disparity in income and/or assets. The District Court opinion and the cited cases all stand for the proposition that where there is “equilibrium” in the financial positions of the parties, there is no basis for fees. Accordingly, there is no express and direct conflict between the District Court opinion and those cases cited by the Petitioner. It is respectfully submitted that this Court should decline to exercise its discretionary jurisdiction in this case. Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, FL 33131 - 7 - CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this 27th day of March, 2009 to: Jay M. Levy, Esq., Dadeland Centre II, Suite 1010, 9155 S. Dadeland Blvd., Miami, FL 33156; and Laura M. Fabar, Esq., 2601 South Bayshore Drive, Suite 600, Miami, FL 33133. By:___________________________ Robert F. Kohlman, Esq. FBN: 0026956 Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, FL 33131 - 8 - CERTIFICATE OF TYPE SIZE AND FONT Counsel for Respondent hereby certifies that this brief has been prepared in 14 point Times New Roman, Microsoft Word format. By:___________________________ Robert F. Kohlman, Esq. FBN: 0026956 MIADMS/346199.1 Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, FL 33131 - 9 - .