Lynne MacDonald v. Brian D. MacDonald

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
LYNNE MACDONALD,
Appellant,
v.
BRIAN D. MACDONALD,
Appellee.
No. 4D2025-3043
[April 29, 2026]
Appeal of a nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Jessica Marra and Kevin Tynan, Judge;
L.T. Case No. 062017DR013840AXXXCE.
Stacey Lynn Cohen and Jennifer A. Patti of Cohen Blass Law, P.A., Fort
Lauderdale, for appellant.
No appearance for the appellee.
MAY , J.
The 	former 	wife 	appeals 	a 	post-dissolution 	order 	concerning
reunification and ordering the former wife to pay 100% of the Guardian ad
Litem’s (GAL’s) fee. 	She argues the trial court denied her due process in
reestablishing the former husband’s timesharing and abused its discretion
in requiring her to pay 100% of the GAL’s fee without making the required
finding of her ability to pay. 	We agree with her in part and reverse on the
fee issue only.
The trial court entered a final judgment of dissolution of marriage in
2022. 	In 2023, the former wife moved for temporary suspension of the
former husband’s timesharing with the minor children. Following two and
a half days of hearings, the trial court entered an amended order granting
the former wife’s motion for temporary suspension of the former husband’s
timesharing. The trial court found it was not in the children’s best interest
to reinstate timesharing, “but that it is in the best interest of each of the
minor children for timesharing to make its way back in that direction, but
not without certain parameters.”

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The 	trial 	court 	ordered 	that 	the 	parties 	were 	to 	“meaningfully,
purposefully and willingly engage with and participate in . . . reunification
therapy.” 	The order further stated that “the cost of reunification therapy
shall be shared on a pro rata basis in accordance with the Final Judgment
of Child Support.”
The 	former 	wife 	then 	filed 	her 	“verified 	supplemental 	petition 	for
temporary 	and 	permanent 	relocation,” 	and 	a 	“motion 	for 	an 	order
permitting temporary relocation.” 	She requested relocation based upon a
job offer in Massachusetts. 	She maintained that the petition was due in
part to former husband’s failure to pay child support and his court-ordered
share of the children’s expenses.
The trial court entered its written order on former wife’s motion for
relocation. 	The court found:
The 	statutory 	factors 	under 	Fla. 	Stat. 	61.13001, 	when
weighed together, favor permitting the temporary relocation of
the children to Massachusetts with Mother pending a final
hearing on this matter.
. . . .
The children’s best interests require that reunification therapy
move forward in a meaningful and consistent way. 	This court
therefore 	conditions 	relocation 	upon 	strict 	compliance 	with
therapy, financial obligations, and monitoring by a Guardian
ad Litem. The Court stresses that both parents must act in good
faith to foster and protect the children’s bond with each parent.
(emphasis added).
The trial court appointed a GAL at the former wife’s expense “with
reservation to reallocate at a later time if the evidence so supports.” 	The
trial court made no findings as to the former wife’s ability to solely pay the
GAL fees.
The former wife moved for rehearing and argued the trial court erred by
appointing a GAL solely at her expense without determining her ability to
pay. 	She 	also 	argued 	the 	trial 	court 	granted 	unpled 	relief 	when 	it
reinstated former husband’s timesharing and communication with the
children. 	The trial court did not rule on the motion for rehearing.
The former wife now appeals. The former wife argues: (1) the trial court
violated her due process rights when it “reinstated former husband’s
communication and timesharing” with the minor children as it granted

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unpled relief; and (2) the trial court abused its discretion by ordering
former wife to pay 100% of the GAL fees without determining her ability to
pay.
“The standard of review of the discretionary orders for timesharing,
temporary 	alimony, 	and 	attorney’s 	fees 	and 	costs 	is 	abuse 	of
discretion.” Troike v. Troike, 271 So. 3d 1069, 1072 n.3 (Fla. 3d DCA 2019)
(citing Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980)).
Section 61.16(1) requires a trial court to take into consideration a
party’s financial ability when imposing attorney’s fees and costs. 	See §
61.16(1), Fla. Stat. (2024). 	The appointment of a GAL is considered a
“cost” of litigation. 	Levy v. Levy, 388 So. 3d 932, 936 (Fla. 3d DCA 2024)
(citing Franklin & Criscuolo/Lienor v. Etter, 924 So. 2d 947, 950 (Fla. 3d
DCA 2006)). 	In Levy, the Third District explained that it could not
determine whether the trial court abused its discretion in ordering the
former wife to pay 50% of the GAL fees because the trial court’s order failed
to make findings as to the parties’ financial ability to pay the GAL fees.
Levy, 388 So. 3d at 937; see also Troike, 271 So. 3d at 1073–74.
Here, the trial court appointed a GAL at the former wife’s sole expense
“with reservation to reallocate at a later time if the evidence so supports.”
Yet, the order failed to contain express findings as to the former wife’s
ability to pay. 	This was a fatal flaw.
We are aware that trial courts may need to appoint guardians on an
emergency 	basis 	preventing 	them 	from 	making 	an 	“ability 	to 	pay”
determination at the same time. 	We see no problem with a trial court
either basing an “ability to pay” finding on the existing, current record and
expressing that it has done so or deferring the allocation of financial
responsibility for a reasonable time to make the required “ability to pay”
determination. Either way, the record must reflect the requisite finding or
the deferment of that finding for a reasonable time. This record fails to do
either.
We therefore reverse and remand to the trial court for a determination
of the former wife’s ability to pay.1 See Levy, 388 So. 3d at 937–38.
1 We affirm the former wife’s first argument on appeal because the trial court did
not reinstate the former husband’s communication and timesharing but rather
ordered that the former husband resume reunification therapy as the court
determined it was in the best interests of the children.

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Affirmed in part; reversed in part and remanded.
CONNER and S HEPHERD, JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.