DENA WEBER v. BRUCE WEBER

S IXTH D ISTRICT COURT OF APPEAL
S TATE OF F LORIDA
_____________________________
Case No. 6D2024-2778
Lower Tribunal No. 2019-DR-006053
_____________________________
D ENA W EBER ,
Appellant,
v.
B RUCE W EBER,
Appellee.
_____________________________
Appeal from the Circuit Court for Polk County.
Keith P. Spoto, Judge.
March 27, 2026
NARDELLA, J.
Dena Weber (“Former Wife”) appeals the denial of her request for attorney
fees and costs incurred in successfully defending against Bruce Weber’s (“Former
Husband”) motion to enforce the parties’ marital settlement agreement (“MSA”).
Although the MSA contains a prevailing party fee provision, the trial court denied
the Former Wife’s request for attorney fees and costs. We reverse.
While married, the parties purchased a waterfront property in Boca Grande,
Florida which was conveyed via two deeds—a warranty deed for the dry land
containing the residence and a quitclaim deed for the adjacent submerged land. The

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parties then transferred title to the portion of the Boca Grande property containing
the residence to “The David Bruce Weber Irrevocable Family Trust Agreement of
2012” (“Trust”), but never transferred title to the submerged land.
When the marriage dissolved, the parties entered into an MSA that was
incorporated into the final judgment. The MSA said nothing about the Boca Grande
property. It did, though, contain the following provision regarding attorney fees and
costs:
The prevailing party in any proceeding to enforce any provision of this
Agreement shall be entitled to an award of attorney’s fees and costs
incurred in such proceeding.
After the divorce, the Trust’s trustee contracted to sell the Boca Grande
property to a third party. 	After doing so, the trustee discovered that title to the
submerged land had not been transferred to the Trust. 	Trying to correct this
oversight, the Former Husband moved to enforce the MSA, claiming that since the
parties agreed to “execute such other documents as are necessary to carry out the
terms of the MSA and the Final Judgment” the trial court retained authority to and
should compel the Former Wife to execute a quitclaim deed transferring the
submerged land to the Trust. But the Former Wife successfully opposed the motion
and requested an award of attorney fees and costs pursuant to the MSA. As argued
by the Former Wife, the MSA contains a prevailing fee provision, and she prevailed
against the Former Husband’s motion to enforce the MSA. Although the trial court

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ruled swiftly on the Former Husband’s motion to enforce the MSA, it reserved ruling
on the Former Wife’s motion for attorney fees and costs.
After a year passed with no ruling from the trial court on the fee issue, an
unrelated controversy arose leading the Former Wife to request certain tax forms
and an update to a 529 plan. 	As to this new controversy, the Former Wife filed a
motion to compel and then set a hearing on her new motion and her old request for
attorney fees and costs. At the omnibus hearing, the trial court denied both requests.
It then entered an unelaborated order denying the Former Wife’s request for attorney
fees, citing only the Former Husband’s motion to enforce and its order denying that
motion. 	This appeal followed, with the Former Wife challenging the trial court’s
denial of her motion for attorney fees and costs under the prevailing party provision
of the MSA.
“A trial court’s determination of whether a party prevails on the ‘significant
issues’ in litigation so as to designate that party the prevailing party for the purpose
of awarding attorney’s fees is reviewed for an abuse of discretion.” 	MacKenzie v.
Centex Homes by Centex Real Est. Corp., 281 So. 3d 621, 624 (Fla. 5th DCA 2019).
The issue of entitlement to attorney fees based on the interpretation of a contract,
however, is reviewed de novo. 	Wells Fargo Bank Nat’l Ass’n for Morgan Stanley
ABS Cap., MSAC 2007-HE3 v. Bird, 234 So. 3d 833, 834 (Fla. 5th DCA 2018);
Sacket v. Sacket, 115 So. 3d 1069, 1071 (Fla. 4th DCA 2013). 	So too is the
determination of whether the litigation ended in a tie. See MacKenzie, 281 So. 3d at

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624 (explaining that “[t]he determination of whether multiple claims within a lawsuit
are separate and distinct for purposes of attorney’s fees is a matter of law to be
reviewed de novo” (quoting Leon F. Cohn, M.D., P.A. v. Visual Health & Surgical
Ctr., Inc., 125 So. 3d 860, 863 (Fla. 4th DCA 2013))).
A prevailing party is one who succeeds “on any significant issue in litigation
which achieves some of the benefit the parties sought in bringing suit.” 	Moritz v.
Hoyt Enters., Inc., 604 So. 2d 807, 809–10 (Fla. 1992) (quoting 	Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983)). 	This does not always mean that there must
be one prevailing party. At times, the litigation effectively ends in a tie, with each
party prevailing in part and losing in part on significant issues in the case. 	Loy v.
Loy, 904 So. 2d 482, 484 (Fla. 3d DCA 2005); see Bauerle v. Bauerle, 371 So. 3d
969, 971–72 (Fla. 5th DCA 2023) (recognizing that litigation can end in a tie where
no party is a prevailing party). In those cases, it is within the trial court’s discretion
to deny each party’s request for attorney fees. 	Schoenlank v. Schoenlank, 128 So.
3d 118, 121 (Fla. 3d DCA 2013) (citing Loy, 904 So. 2d at 484). But such is not the
case here.
The sole issue raised in the Former Husband’s motion to enforce was whether
the Former Wife violated the MSA by not transferring her interest in the submerged
land to the Trust. The trial court rejected this claim entirely, ostensibly because the
MSA 	said 	nothing 	about 	the 	Boca 	Grande 	property. 	The 	Former 	Wife,

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consequently, prevailed on a significant issue and, as a result, the trial court abused
its discretion by denying her request for attorney fees and costs under the MSA.1
The arguments raised in defense of the trial court’s ruling do not undermine
the foregoing conclusion. 	First, the fact that the Former Husband’s motion to
enforce was denied because the MSA contained no provisions regarding the Boca
Grande property does not preclude the Former Wife from recovering her attorney
fees and costs under the MSA. 	The Former Husband moved to enforce the MSA
and his attempt to do so was denied. This was enough to entitle the Former Wife to
attorney fees and costs for defending against the motion to enforce.
Further, this is not a situation where the Former Wife merely obtained a
procedural victory. 	It was more than that. As discussed above, the issue raised in
the Former Husband’s motion to enforce was whether the Former Wife violated the
MSA by not transferring her interest in the submerged land to the Trust. 	The trial
court found no violation and so the Former Wife prevailed on a significant issue (and
also avoided the Former Husband’s request for attorney fees and costs under the
MSA). 	That the Former Husband may obtain the relief he sought in his motion to
enforce through another cause of action does not lessen the legal significance of the
1 It should be noted that neither party sought attorney fees under section 61.16,
Florida Statutes. Thus, nothing in this opinion should be read as stating that the
presence of a prevailing party provision like the one here precludes a party from
seeking attorney fees under section 61.16. 	That matter will be left for a case that
raises that precise issue.

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Former Wife’s substantive victory over the Former Husband’s claim that she
violated the MSA. Therefore, the Former Wife’s victory was not simply procedural,
leaving her exposed to the same claim; it was a complete victory over that claim,
which triggered her entitlement to attorney fees and costs under the MSA. Cf. Tubbs
v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034, 1041–43 (Fla. 2d
DCA 2013) (finding defendant was not the prevailing party in a foreclosure action
when the plaintiff voluntarily dismissed its claims after a third party successfully
foreclosed 	on 	its 	superior 	mortgage 	lien, 	rendering 	plaintiff’s 	claims 	moot);
Residents for a Better Cmty. v. WCI Cmtys., Inc., 291 So. 3d 632, 634 (Fla. 2d DCA
2020) (reversing award of attorney fees because “WCI did not achieve its objective
of making the litigation go away as a result of the [voluntary] dismissal—the same
claims remained pending against WCI”); Torruella v. Nationstar Mortg., LLC, 308
So. 3d 674, 677 (Fla. 5th DCA 2020) (affirming denial of defendant’s request for
attorney fees under prevailing party provision in contract where she did not prevail
on a “significant issue” in the foreclosure action because “the trial court only decided
whether service of process was sufficient, not whether the foreclosure action had
merit”).
Finally, this is not a situation where the litigation ended in a tie. 	Post-
judgment litigation, especially in cases involving an MSA, is unique in that parties
may come to court many times following the entry of the final judgment to resolve
discrete issues that may arise as the parties attempt to comply with the MSA.

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Because of this unique nature, one discrete issue, such as a motion to enforce a
provision in the MSA, may arise, be resolved, and followed by another discrete issue
unrelated to the prior issue. That is what occurred here. The Former Husband moved
to enforce the MSA and lost. That was the end of that post-judgment litigation. The
only reason the Former Husband can colorably argue that there was a tie is because
of the timing of the trial court’s ruling on the Former Wife’s request for attorney fees
and costs. 	By ruling on that request and the discovery motion at the same time, it
does appear as though the litigation resulted in a tie. But when considering the entire
procedural history, that is simply not the case. As discussed above, the Former Wife
prevailed over the Former Husband’s motion to enforce the MSA. 	This was a
distinct issue that was litigated and resolved long before the Former Wife even filed
her discovery motion. Therefore, it should not be conflated with the Former Wife’s
discovery motion, especially when the order denying the Former Wife’s fee demand
only referenced the Boca Grande property issue and did not mention the subsequent
discovery issue. See River Bridge Corp. v. Am. Somax Ventures, 76 So. 3d 986, 989
(Fla. 4th DCA 2011) (“[W]here each claim is separate and distinct and would
support an independent action, . . . the prevailing party on each distinct claim is
entitled to an award of attorney’s fees for those fees generated in connection with
that claim.” (citing 	Folta v. Bolton, 493 So. 2d 440, 442 (Fla. 1986))); 	cf.
Schoenlank, 128 So. 3d at 121 (affirming denial of parties’ requests for attorney fees
under marital settlement agreement where the two major issues that were tried

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together: the downward modification of former husband’s support obligations and
the former wife’s collection of delinquent equitable distribution payments, resulted
in a tie, with each party winning and losing various aspects of each issue).
For these reasons, we reverse the trial court’s order denying the Former Wife’s
request for attorney fees and costs under the MSA and remand the matter for further
proceedings to determine how much the Former Wife is entitled to recover against
the Former Husband for successfully defending against his motion to enforce the
MSA.
REVERSED and REMANDED.
WOZNIAK, J., concurs.
TRAVER, C.J., concurs and concurs specially, with opinion
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NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING
AND DISPOSITION THEREOF IF TIMELY FILED
__________________________________
TRAVER, C.J., concurring and concurring specially.
I concur fully in the majority opinion. 	I write separately to expand on the
majority’s observation that section 61.16, Florida Statutes, is not at issue in the
enforcement proceedings that gave rise to this appeal. While we have not addressed
the interplay between this statute and a prevailing party fee provision in a marital
settlement agreement, at least three of our sister courts have. See, e.g., Dean v. Dean,
655 So. 2d 243, 244 (Fla. 3d DCA 1995); Vitale v. Vitale, 31 So. 3d 970, 973 (Fla.
4th DCA 2010); Ulbrich v. Coolidge, 935 So. 2d 607, 608 (Fla. 4th DCA 2006);

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Avellone v. Avellone, 973 So. 2d 1171, 1172 (Fla. 1st DCA 2007). And those courts
have concluded that section 61.16 does not apply in enforcement cases involving a
marital settlement agreement with a prevailing party provision. 	I respectfully
question this conclusion as an absolute proposition. 	While parties may be able to
waive their right to pursue section 61.16 fees expressly via contract, nothing
contained in a standard prevailing party fee provision like the one here2 suggests
waiver.
Section 61.16(1) permits a trial court, “from time to time,” to order a party to
pay an opposing party a reasonable amount of that opposing party’s attorney’s fees
“after considering the financial resources of both parties.” 	The statute applies to
enforcement proceedings. 	See § 61.16(1) (“The court may . . . order a party to pay
a reasonable amount for attorney’s fees, suit money, and the cost to the other party
of 	maintaining 	or 	defending 	any 	proceeding 	under 	this 	chapter, 	including
enforcement and modification proceedings and appeals.” (emphasis added)).
In the seminal decision analyzing section 61.16, the Florida Supreme Court
declared that “[a]ny determination regarding an appropriate award of attorney’s fees
in proceedings for dissolution of marriage, support, or child custody begins with
section 61.16.” Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997) (emphasis added).
2 “The prevailing party in any proceeding to enforce any provision of this
Agreement shall be entitled to an award of attorney’s fees and costs incurred in such
proceeding.”

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Section 61.16’s purpose “is to ensure that both parties will have a similar ability to
obtain competent legal counsel.” Id. (citation omitted). Thus, courts must construe
section 61.16 liberally “to allow consideration of any factor necessary to provide
justice and ensure equity between the parties.” See id. at 700.
But section 61.16 is not the only way for a party to an enforcement proceeding
to recover its attorney’s fees. 	Indeed, chapter 61 itself provides for another basis.
See Lett v. Lett, 408 So. 3d 167, 171 (Fla. 5th DCA 2025) (rejecting section 61.16
need and ability to pay analysis in awarding fees for enforcement proceeding based
on former wife’s refusal to honor time-sharing schedule under section 61.13(4)(c)2.).
And relevant here, each of our sister courts have applied prevailing party fee
provisions in marital settlement agreements. 	E.g., Avellone, 973 So. 2d at 1172;
Christiansen v. Christiansen, 291 So. 3d 1016, 1017 (Fla. 2d DCA 2020); Gilbert v.
Gilbert, 305 So. 3d 735, 739–40 (Fla. 3d DCA 2020); Witt v. Witt, 568 So. 2d 539,
539 (Fla. 4th DCA 1990); Crews v. Crews, 629 So. 2d 1094, 1095 (Fla. 5th DCA
1994).
The 	Florida 	Supreme 	Court 	has 	recognized 	that 	a 	marital 	settlement
agreement is a contract, which is subject to interpretation like any other contract.
See Crawford v. Baker, 64 So. 3d 1246, 1251 (Fla. 2011) (citing Levitt v. Levitt, 699
So. 2d 755, 756 (Fla. 4th DCA 1997)). 	It has held that parties can enter into a
prenuptial agreement that waives their right to recover attorney’s fees during their
ensuing marriage by providing for prevailing party attorney’s fees in actions seeking

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to enforce the agreement. See Lashkajani v. Lashkajani, 911 So. 2d 1154, 1156 (Fla.
2005). In dicta, it has also separately recognized that the prevailing party provision
of a marital settlement agreement may govern a party’s right to fees following an
unsuccessful attempt to set it aside. 	See Bane v. Bane, 775 So. 2d 938, 943 & n.7
(Fla. 2000) (citing Spano v. Spano, 698 So. 2d 324, 325 (Fla. 4th DCA 1997)).
Finally, it has recently upheld a fee-shifting provision in a marital settlement
agreement. See Levy v. Levy, 326 So. 3d 678, 681–82 (Fla. 2021).
Set against this backdrop, I must concede that prevailing party fee provisions
in divorce-related agreements are enforceable. 	Indeed, the Florida Supreme Court
and our sister courts have all observed that trial courts lack discretion to decline to
enforce these provisions, “even if the challenging party brings a meritorious claim
in good faith.” 	See Lashkajani, 911 So. 2d at 1158; see also Gilbert, 305 So. 3d at
739; Conway v. Conway, 111 So. 3d 925, 928 (Fla. 1st DCA 2013); Mott v. Mott, 800
So. 2d 331, 333 (Fla. 2d DCA 2001); Rose v. Rose, 615 So. 2d 203, 204 (Fla. 4th
DCA 1993); Jacobson v. Jacobson, 595 So. 2d 292, 294 (Fla. 5th DCA 1992).
But the Florida Supreme Court does not appear to have addressed a situation
where in response to one party’s efforts to invoke such a provision, the other moves
for fees under section 61.16.3 At least three of our sister courts have, and each has
3 The Lashkajani Court had the closest brush with this issue. The Lashkajanis’
prenuptial agreement waived their right to seek fees during a divorce, but it allowed
for prevailing party’s fees if someone tried to violate the agreement. See Lashkajani,
911 So. 2d at 1155 n.1. When the former wife tried to set aside the agreement, the

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concluded that section 61.16 does not apply in an enforcement action under a
prevailing party fee provision. This conclusion has its genesis in the Third District.
See Dean, 655 So. 2d at 244. The Dean court declared that in an appeal of a trial
court order denying fees under a prevailing party fee provision in a marital settlement
agreement, “[w]e agree with the husband that the right to attorney’s fees is governed
only by the contract and that section 61.16, Florida Statutes (Supp. 1994), and the
conditions to an award under that statute are therefore irrelevant.” See id. To support
this contention, the Dean court cited a Fifth District case and a Fourth District case,
neither of which mentioned section 61.16. See id. (citing Crews, 629 So. 2d at 1095;
Witt, 568 So. 2d at 539).
Other courts have agreed with Dean’s unsupported conclusion. 	See, e.g.,
Ulbrich, 935 So. 2d at 608 (“[I]n cases involving a marital settlement agreement
with a prevailing party provision, section 61.16, Florida Statutes, cannot be used as
a basis for an award of attorney’s fees.” (citing Zakian v. Zakian, 837 So. 2d 549,
551 (Fla. 4th DCA 2003); Dean, 655 So. 2d at 244)); Avellone, 973 So. 2d at 1172
trial court denied the request and found the agreement valid. 	See id. at 1155. Both
parties sought fees, the former husband under the prenuptial agreement’s prevailing
party fees provision, and the former wife under section 61.16. The trial court granted
both motions, but the Second District reversed the husband’s award, finding the fee
waiver unenforceable for public policy reasons. 	See id. at 1156. 	The Florida
Supreme Court found the prenuptial agreement’s prevailing party fee provision
enforceable, but it did not directly address section 61.16 because the former husband
dropped his intermediate appellate challenge to the former wife’s fee award on those
grounds. 	See id. at 1160; Lashkajani v. Lashkajani, 855 So. 2d 87, 89 n.2 (Fla. 2d
DCA 2003).

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(“Although section 61.16(1), Florida Statutes (2006), provides that a court may, after
considering the financial resources of both parties, order a party to pay a reasonable
amount for attorney’s fees to the other party in dissolution of marriage, support, and
custody cases, this statute and its focus on the parties’ financial resources is
irrelevant in this case given the parties’ agreement.” (citing Ulbrich, 935 So. 2d at
608; Dean, 655 So. 2d at 244)); Vitale, 31 So. 3d at 973.
Section 61.16’s plain language mandates its applicability to enforcement
proceedings. Thus, I cannot conclude that the mere existence of a prevailing party
fees provision in a marital settlement agreement automatically renders the statute
inapplicable. 	Perhaps, subject to traditional contract defenses like fraud, duress,
mistake, or illegality, parties to a marital settlement agreement could forfeit their
right to pursue section 61.16 fees. 	Parties to an arm’s-length agreement can, of
course, expressly waive all manner of rights, provided it is done knowingly and
voluntarily. See Bellaire Sec. Corp. v. Brown, 168 So. 625, 639 (Fla. 1936) (“A party
may waive any right to which he is legally entitled, whether secured by contract,
conferred by statute, or guaranteed by the Constitution.”); De Campos v. Ferrara,
90 So. 3d 865, 869 (Fla. 3d DCA 2012) (“Florida courts generally have held that a
party to a property settlement agreement can waive his statutory right to an award of
attorney’s fees in an enforcement proceeding, but such waiver depends upon express
language to that effect.”); Sasnett v. Sasnett, 683 So. 2d 177, 178 (Fla. 2d DCA 1996)
(“In order to find that a waiver of rights has occurred, the language used in the

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agreement must clearly and unambiguously express waiver or the language must be
such that an interpretation of the agreement as a whole can lead to no other
conclusion but waiver.”). 	But nothing about a boilerplate prevailing party fee
provision in a marital settlement agreement, like the one in this case, suggests to me
that the right to seek section 61.16 fees is waived.
This record shows that the parties had no need for attorney’s fees to secure
competent legal counsel. 	But if they did, I think the trial court should have
considered the request. 	As the majority opinion concludes, this is a question for
another day, but I respectfully submit that it is one worth answering.
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Victor R. Smith and Jeffrey I. Burry, of Victor Smith Law Group, P.A., Winter
Haven, for Appellant.
Stephen Senn, E. Blake Paul, and Matthew J. Vaughn, of Peterson & Myers, P.A.,
Lakeland, for Appellee.