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A Broward County, Fla., judge did not improperly delegate his decision-making authority on attorney fees in a hotly contested divorce case, because he gave oral instructions before the parties drafted their proposals and because his decision incorporated elements from both sides, Florida’s 4th District Court of Appeal has ruled. In its unanimous ruling last month, the 4th DCA distinguished the case of Rosenbloom v. Rosenbloom from that of Perlow v. Berg-Perlow. In Perlow, the Florida Supreme Court last year chastised a Palm Beach Circuit senior judge for letting the lawyer for one of the parties in a divorce case write the judge’s order. The justices said in Perlow that “the practice of a trial judge adopting verbatim a proposed final judgment without making any modifications, additions or deletions, and without making any comments on the record prior to entry of the final judgment is frowned upon.” Experts say the ruling has forced family court judges to draft their own orders. In the Rosenbloom case, the 4th DCA ruled that Carol M. Rosenbloom was entitled to only $267,000 in attorney fees — not the $672,000 she requested — from her ex-husband, Hollywood, Fla., heart surgeon Michael Rosenbloom. Carol Rosenbloom was represented by James Fox Miller and Greg A. Lewen of the Hollywood firm Miller Schwartz & Miller. Michael Rosenbloom was represented by Tracy B. Newmark and Terry Ellen Fixel of Fixel & LaRocco in Hollywood. In the unanimous decision written by Judge William Berger, the 4th DCA panel ruled that since Broward Circuit Judge Lawrence Korda made “significant corrections, deletions and additions” to the proposed orders submitted by both sides, he did not delegate his independent decision-making responsibility to either party. Chief Judge Gary M. Farmer and Judge Larry A. Klein concurred. The appellate panel noted approvingly that, consistent with the state Supreme Court’s opinion in Perlow, Korda gave the Rosenblooms three months to review each other’s proposals. It also noted that Mrs. Rosenbloom did not raise the issue in her appeal of insufficient time to review her husband’s proposed order. Newmark said Mrs. Rosenbloom’s attorney fees were “extreme.” Lewen said courts are justified in keeping their eyes on attorney fees and trial costs. But in the Rosenbloom case, he said, his client’s attorney fees were reasonable since the case was “heavily contested litigation over issues that were not easily resolved,” including custody over the couple’s child. The decision comes at a time when some lawyers and judges say the divorce litigation system in Florida needs to be reformed to address high costs and lengthy trials. “Litigation in general has become so expensive that it is beyond the means of many people,” said Richard A. Kupfer, the West Palm Beach solo practitioner who successfully argued the Perlow case before the Supreme Court on behalf of Esig Perlow. $500 AN HOUR NIXED Dr. Rosenbloom had argued at trial that fees for his former wife’s attorneys, Miller and Lewen, should not have exceeded $227,500 based on 650 hours at a flat rate of $350 per hour. Korda ultimately awarded Mrs. Rosenbloom $267,262 in attorney fees. Korda rejected her calculation of $672,257 for a total of close to 2,000 hours billed by her attorneys, including more than 1,000 hours at $500 per hour for her lead attorney. The court calculated its fee award based on $300 per hour for the lead attorney for 650 hours and lesser amounts for the three other attorneys that staffed her case, for a total of a little more than 1,000 hours. Mrs. Rosenbloom appealed. She argued that Korda improperly delegated his decision-making authority to her former husband’s attorneys by basing most of the fee award from calculations in their proposed order. She also argued that the judge erred when he denied her motion for additional oral pronouncements. In its ruling, the 4th DCA panel said that since Korda had made initial oral pronouncements instructing the parties what to include in their proposed orders, he did not abuse his discretion by denying Mrs. Rosenbloom’s request for additional oral findings. “The court gave direction at closing as to what each side should include in their respective proposals,” the 4th DCA said. “The procedure he utilized resulted in entry of an order, after an appropriate deliberative period had lapsed, with significant corrections, deletions and additions to those submitted by both sides and did not create the appearance that he had delegated to one side or the other his independent decision-making responsibility.” The 4th DCA also rejected Mrs. Rosenbloom’s objection that the hourly rate of $300 used by the trial court to calculate her fee award was less than the $350 rate that her former husband’s expert testified was reasonable. “A trial court has broad discretion in awarding attorney’s fees in a dissolution case,” the 4th DCA said. “The court, as the trier of fact, is not bound by testimony of expert witnesses, even where unrebutted.” The 4th DCA dismissed other claims raised on appeal for lack of merit, including a claim by Dr. Rosenbloom that his former wife owed him $71,188. INCENTIVES TO OVERLAWYER Scott Jay Feder, a Coral Gables, Fla., attorney who himself went through a divorce several years ago, said the current system creates an incentive for the nonearning spouse to overlitigate by allowing that spouse to collect attorney fees from the other party rather than from the common marital estate. Requiring fees to be paid from the marital estate would reduce the incentive to overlawyer. But Alison C. Weinger, a Miami solo practitioner and a veteran mediator in divorce cases, said clients’ high emotions are the main cause of the adversarial nature of divorce cases, leading to longer litigation and higher legal fees. Weinger said judges face the tough task of balancing being fair to the parties and getting cases resolved expeditiously, and most judges are oriented toward getting a prompt resolution. Feder said high attorney fees have led to an increase in people handling their divorces on a pro se basis, which places a heavy burden on the court system. Judges and court staff spend time making sure pro se litigants’ due process rights are protected and correcting their mistakes. Kupfer agreed that the increase in pro se litigation is the “symptom of a system that has become too expensive.” But he noted that some divorce cases, such as that of the Rosenblooms, are very complex, and attorneys who devote many hours to help their clients should not be short-changed. Victoria M. Ho, a partner at Naples, Fla.-based Asbell & Ho and Florida chapter president of the Tampa, Fla.-based American Society of Matrimonial Lawyers, said divorce cases involving hundreds of thousands of dollars in attorney fees, as in the Rosenbloom case, are the exception in Florida. She said 80 percent of divorce cases in this state settle. An alternative to expensive divorce litigation is the use of collaborative law, in which parties hire attorneys for the sole purpose of helping them reach a settlement, Ho said. In such cases, clients and attorneys sign an agreement prohibiting the attorney who works on the settlement from representing the client at trial in the case that settlement fails, Ho said. Such arrangements decrease the incentive for attorneys and clients to be adversarial and promote cooperation, Ho said. Weinger, who also supports collaborative settlement of divorce cases, said the use of private or retired judges to help settle cases is another alternative to costly and lengthy litigation.

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