NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CHERYL PELPHREY-WEIGAND, ) ) Appellant, ) ) v. ) Case No. 2D17-1503 ) ROBERT K. WEIGAND, ) ) Appellee. ) ________________________________ ) Opinion filed April 17, 2019. Appeal from the Circuit Court for Hillsborough County; Laurel Lee, Judge. Allison M. Perry of Florida Appeals, P.A., Tampa, for Appellant. Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon, for Appellee. NORTHCUTT, Judge. Cheryl Pelphrey-Weigand appeals a single order granting two postmarital dissolution motions for attorneys' fees and costs filed by her former husband, Robert Weigand. We reverse the order insofar as it awards fees and costs incurred in the proceeding on Pelphrey-Weigand's motion to set aside the dissolution judgment. Otherwise, we affirm. In January 2015, during the litigation on his former wife's motion to set aside the judgment, Weigand moved for an award of fees and costs. He argued pursuant to section 57.105, Florida Statutes (2014), that Pelphrey-Weigand's allegations were unsupported by existing facts and otherwise were legally insufficient to support her request for relief from the judgment. In February 2016, the circuit court denied Pelphrey-Weigand's motion to set aside the judgment, reserving jurisdiction to rule on Weigand's fees and costs motion. He amended the motion the following month, again asserting that he was entitled to fees and costs under section 57.105. The court conducted a hearing on Weigand's fee motion as amended and, on September 2, 2016, rendered an order denying it. Weigand did not move for rehearing or appeal the order. Meanwhile, two months after the denial of Pelphrey-Weigand's motion to set aside the divorce judgment, she filed a motion for contempt and to enforce the judgment. The court denied this motion on September 8, 2016, reserving jurisdiction to consider Weigand's request for fees and costs incurred defending against it. In late October 2016, Weigand filed an amended motion for fees and costs related to the contempt proceeding. Also, notwithstanding that the circuit court had previously denied his motion for fees and costs related to his former wife's effort to set aside the divorce judgment, in late October 2016 Weigand again moved for fees and costs incurred in that proceeding. Whereas his prior motion invoked section 57.105, the new motion alleged his entitlement under section 61.16, Florida Statutes (2016). He later amended this motion to add an allegation that he was entitled to an award under a prevailing party -2- attorneys' fee provision in the parties' marital settlement agreement, which had been incorporated in their dissolution judgment. The order under review granted Weigand's motions for fees and costs for defending against both the motion to set aside the dissolution judgment and the later motion for contempt. Prior to the hearing on the fee motions, the circuit court entered an order rejecting Pelphrey-Weigand's claim that the previous denial of Weigand's motion for fees and costs in the first proceeding was res judicata as to that entitlement. The ...
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