By Jeffrey T. Donner, Esq.

The substituted opinion in Schultheis v. Schultheis is the kind of family-law fee decision that practitioners will cite for the holding, but study for the separate opinion. The majority resolves a narrow question—whether section 61.16(1) authorizes an award of fees incurred litigating the amount of attorney’s fees (“fees for fees”)—and answers “no,” reversing the subsequent fee award to the extent it compensated time spent establishing the amount of fees claimed by counsel. But the case’s broader significance lies in the unusually long concurring in part and dissenting in part opinion (Judge Emas), which reads less like disagreement for disagreement’s sake and more like a roadmap for how the issue should be litigated going forward, and why the Florida Supreme Court should take the case.

If you practice in post-judgment enforcement, high-conflict dissolution litigation, or any case where fee exposure is a feature (not a footnote), Schultheis matters. If you handle high-net-worth cases, it matters even more, because fee hearings in those matters are not quick side skirmishes—they are often major evidentiary proceedings with real leverage implications.

What Happened Procedurally and Why the Posture Matters

The court affirmed an “initial” attorney’s fees order awarding the former wife fees she incurred in enforcing the marital settlement agreement. There was no real controversy there (or at least none the panel thought warranted discussion). The fight was about the “subsequent” attorney’s fees order—fees incurred by the former wife’s lawyer in establishing the amount of the fee being claimed. That is the classic “fees for fees” problem: not fees to establish entitlement, but fees to litigate the amount of the award.

That posture is important because it frames the competing narratives. To the majority, the “amount” fight is lawyer-centric: time spent litigating the amount “inures solely to the attorney’s benefit.” To the dissent, the “amount” fight is client-centric in family cases: the fee award affects the client’s financial position and ability to maintain representation, and therefore is part of what section 61.16 is designed to address.

The Majority’s Holding and Its Logic

The majority opinion plants its flag in familiar Florida fee terrain. It starts with the American Rule and strict construction: fees are not recoverable absent statute or contract; fee statutes are in derogation of the common law and must be strictly construed; “costs” are not “fees” absent clear authorization. Then it imports the State Farm Fire & Cas. Co. v. Palma framework: fees incurred litigating entitlement may be recoverable, but fees incurred litigating the amount generally are not.

From there, the majority does two things that matter in real-world practice.

First, it reads the text of section 61.16(1) and finds no express authorization to award fees incurred by the attorney to establish the amount of his or her own fee. The majority treats that silence as dispositive. It refuses to infer “fees for fees” from the statute’s broad language about awarding fees for maintaining or defending any proceeding under Chapter 61. That is the key textual move.

Second, it pushes hard on purpose and incentives. The majority frames Chapter 61’s purposes (promoting amicable settlement; mitigating harm to spouses and children) as being undermined by “fees for fees,” because compensating the fight over amount can lead to self-perpetuating fee litigation. The majority is explicit that it sees a risk of turning fee disputes into an engine for continued compensation, and it suggests that the existing Chapter 61 fee-shifting scheme already provides sufficient access to counsel without encouraging abuse.

Even if you disagree with the tone, you can see the practical judicial instinct: trial judges see fee litigation become unmoored from the merits, and appellate judges see records swollen with fee fights. The majority’s decision gives judges a clean doctrinal tool to control that dynamic.

Now the Long Separate Opinion: Why It Matters, and What It’s Really Doing

Judge Emas’s opinion is labeled a concurrence in part and dissent in part. He agrees with affirming the initial fee order. He disagrees with reversing the subsequent fee order. But the length and depth of the dissent signals something else: this is not merely an alternate reading. It is an attempt to define the debate for the Florida Supreme Court and for the practicing bar.

Long dissents in intermediate appellate decisions frequently serve three functions at once. First, they preserve a competing doctrinal approach with enough rigor that it can become controlling later. Second, they offer “how to think about this” guidance to trial judges and litigators, even in districts where the majority currently controls. Third, they frame the question for Supreme Court review in a way that is difficult to ignore, especially when there is a certified conflict.

You can see all three at work here. Judge Emas is not simply saying “I would affirm.” He is saying: the majority is applying the wrong statutory interpretation method, has mischaracterized what “any proceeding” means in context, and is ignoring the unique structure and equitable purposes of Chapter 61 fee jurisprudence. He backs this with an unusually extensive survey of statutory interpretation authority and Chapter 61 doctrine.

In other words, the dissent is teaching: teaching how to argue this issue, teaching how to analyze section 61.16, and teaching why the bar should not treat this as a simple Palma extension.

The Dissent’s Core Thesis: Section 61.16 Is Not Like Other Fee Statutes, and “Any Proceeding” Means What It Says

Judge Emas insists that the majority’s analysis begins and ends too quickly with “the statute doesn’t say fees for fees.” He frames Palma differently: Palma requires looking at both statutory text and statutory purpose, in context. He argues section 61.16 is uniquely broad, uniquely equitable, and unlike a prevailing-party statute. In his view, the phrase “maintaining or defending any proceeding under this chapter” is expansive enough to encompass post-judgment proceedings to determine the amount of fees to be awarded, because fee proceedings are not separate from Chapter 61 litigation; they are a procedural step within it.

This is not just semantics. It is an effort to recharacterize the “amount” fight as part of the Chapter 61 proceeding itself—particularly where the amount of fees affects the client’s financial circumstances, and the statute’s purpose is to level the playing field.

Judge Emas bolsters this conclusion by emphasizing that Chapter 61 proceedings are equitable, and that the Legislature told courts to construe the chapter liberally. He also leans on the Florida Supreme Court’s decision in Rosen v. Rosen for the proposition that trial courts have wide discretion and may consider “all the circumstances” in awarding fees under section 61.16.

His larger point is that the majority is importing strict-construction instincts from typical fee-shifting statutes into a family-law statute that is designed to be discretionary and equitable. He essentially argues that if any statutory scheme can justify a departure from a rigid “no fees for fees” rule, it is section 61.16.

The Dissent’s Most Important Reframing: “Fees for Fees” Do Not Necessarily Inure Solely to the Attorney’s Benefit

The majority repeats the familiar refrain: litigating the amount “inures solely to the attorney’s benefit.” Judge Emas challenges that premise, at least in the Chapter 61 setting. He argues that in dissolution proceedings, the amount of fees matters to the client’s financial picture, and leaving the “needy spouse” with unpaid fees can affect the spouse’s ability to litigate the remainder of the case (or post-judgment enforcement/modification). He draws support from other district decisions recognizing that fee determinations in family cases are intertwined with equitable distribution and the avoidance of inequitable depletion of assets.

This is an important “read between the lines” moment because it highlights the philosophical divide. The majority views “fees for fees” as attorney-driven; the dissent views them as sometimes necessary to prevent the very imbalance section 61.16 is meant to address. Practitioners will recognize both realities depending on the case. In high-net-worth disputes, the “amount” hearing can be weaponized; in many other cases, it can be the only way a less-monied spouse gets paid representation to the finish line.

Judge Emas is candid about this tradeoff. He does not pretend that every case warrants fees for fees. His argument is that the statute gives trial courts discretion to award them when equity requires it, and appellate courts should not impose a categorical rule to the contrary.

Conflict Certification and the Dissent as a Petition in Disguise

The dissent’s attention to conflict is not subtle. Judge Emas frames a direct conflict between districts (including the Fourth District’s Schneider and the Second District’s Wight line), and he positions Schultheis as the vehicle for Supreme Court review to establish statewide uniformity. The majority itself certifies conflict with Schneider, but the dissent’s treatment of conflict is more ambitious: it is essentially a curated record of the doctrinal split and the best arguments for why “fees for fees” should be available at least in some Chapter 61 contexts.

For the bar, the significance is that the dissent tells you how the Supreme Court question will likely be framed: whether section 61.16’s broad language and equitable purpose distinguish it from Palma’s typical application, and whether fee-litigation over amount is a Chapter 61 “proceeding” for statutory purposes.

If the Supreme Court takes it, the dissent reads like the “acceptance brief” for the petitioner.

What Else the Opinion Is “Really” Saying About Fee Litigation Culture

Beyond doctrine, the majority opinion contains a cultural signal: judicial fatigue with runaway fee litigation, and an appetite for limiting incentives to litigate fee amounts endlessly. The dissent contains a counter-signal: concern that a categorical ban will disproportionately burden the spouse who already lacks leverage and resources.

That tension is not abstract; it is the lived reality of many family cases. The dissent is telling trial lawyers: do not assume “fees for fees” are always attorney greed; in Chapter 61 they can be part of the equitable machinery. The majority is telling trial lawyers: do not assume that equitable rhetoric will justify expanding a fee statute beyond what the Legislature clearly authorized, and do not expect appellate courts to bless fee hearings that look like an industry unto themselves.

Practical Lessons for High-Net-Worth Divorce and Post-Judgment Counsel

The big takeaway is that Schultheis is not just a citation—it is a warning that the way you litigate fees matters as much as whether you win.

If you are seeking fees in the Third District, you should expect closer scrutiny of time billed on the “amount” issue. You should anticipate the need to separate time spent establishing entitlement from time spent litigating amount, and you should plan your fee presentation with the idea that the “amount” fight may be only partially compensable or not compensable at all, depending on how the trial court and opposing counsel frame it.

If you are defending against a fee claim, Schultheis gives you a sharp tool to narrow exposure: even where entitlement is conceded or established, you can argue that the opponent’s “amount” litigation is not compensable under section 61.16(1), at least in this district. That changes settlement dynamics on fees. It also changes the “how hard do we fight about the amount” calculation because a party who expected to recoup that fight may now be paying for it out of their own recovery.

If you are advising referral counsel (or potential clients) in complex cases, the case underscores something sophisticated clients understand instinctively: fee exposure is strategic. It is not merely a postscript to the merits. Where the fee fight will be intense—especially in enforcement proceedings that drag on—district law can materially affect expected cost, leverage, and settlement posture.

A Short, Concrete “So What” Section

The holding you cite is simple: in the Third District, section 61.16(1) does not support “fees for fees” incurred litigating the amount of fees, and a fee award including that component is vulnerable on appeal.

The deeper message from the long dissent is also simple: this is not settled statewide; the statute’s language and purpose can plausibly support discretion to award fees for fees; and the Florida Supreme Court may ultimately have to decide whether Chapter 61 is a special category where “amount” litigation can be compensable when equity demands it.