Taylor v. McGregor

Citations: 616 So. 2d 159; 1993 Fla. App. LEXIS 3602; 1993 WL 90536Docket: No. 91-2937

Court: District Court of Appeal of Florida; March 29, 1993; Florida; State Appellate Court

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Gladys Taylor and the Department of Health and Rehabilitative Services (HRS) appealed a trial court order that denied their motion to vacate an award of attorney’s fees. The case arose when HRS filed a child support petition on behalf of Taylor, a custodial grandparent, against Sheila McGregor, the child's mother. HRS sought both a child support order and reimbursement for support previously paid. McGregor denied knowledge of the state support payments and alleged that Taylor fraudulently received Aid to Families with Dependent Children (AFDC). 

The trial court initially directed McGregor to pay child support but reserved judgment on reimbursement for AFDC benefits. An interim order recommended the child's return to McGregor and the termination of child support payments. At the final hearing, HRS retracted its claim for $15,638.05 in past assistance, admitting the correct amount was $1,750. The general master recommended denying HRS's reimbursement claim, citing a lack of evidence regarding McGregor's financial ability to repay or notice of the AFDC payments. 

McGregor subsequently filed a motion for attorney’s fees, which lacked a specified basis. The general master recommended granting the fees due to HRS’s failure to investigate the AFDC claims, lack of competent evidence, and HRS's greater financial capacity. The trial court approved this recommendation. HRS's motion to vacate the attorney's fee award was denied, leading to the appeal by HRS and Taylor. 

There was no cited basis for the attorney’s fee award in the relevant documents, but it was assumed McGregor sought fees under sections 61.16 and 57.105 of the Florida Statutes. HRS, authorized to enforce child support under section 409.2564(1), is considered a party subject to attorney's fee provisions. The Fifth and First District Courts have held that in such enforcement actions, the court can award attorney's fees after considering the parties' financial resources, though this conflicts with a Second District ruling.

HRS is not considered a party in child support enforcement actions under section 61.16, meaning it cannot be held liable for attorney’s fees associated with such actions. This conclusion aligns with the court's holding in Harvey and the dissents of Judges Miner and Sharp in Rogers and Holland. The court certifies conflict with the majority opinions in those cases. It finds that HRS acted in good faith while seeking reimbursement from the mother and that the record does not indicate the action lacked merit. The Fourth District's decision in Crossdale, which affirmed attorney’s fee awards against HRS for bad faith prosecution, is distinguished, with the court agreeing that Crossdale should apply only to frivolous lawsuits under section 57.105. There is no statutory basis for awarding attorney’s fees to HRS under section 409.2564(1). The interpretation of section 61.16, as pointed out by Judge Miner, would render the financial resource comparison meaningless if HRS were included as a party, as it typically possesses superior financial resources. This outcome would contradict the legislative intent of chapter 409 and negatively impact HRS's role as a support enforcement agency. The public policy emphasizes that children should be supported by their parents, reducing the burden on public assistance programs. The legislature did not indicate an intention for HRS to be liable for attorney’s fees in unsuccessful prosecutions. Therefore, the court holds that HRS cannot be subject to attorney’s fees under section 61.16, and even if fees were considered under section 57.105, the award must be reversed due to the lack of a finding of a complete absence of a justiciable issue. The decision is reversed, with concurrence from Judge Cope.