Department of Health & Rehabilitative Services, State ex rel. Bollheimer v. Bollheimer

COBB, Judge. HRS has appealed an award by the trial court of attorney’s fees, based upon section 57.105, Florida Statutes (1991), against a former husband, Larry G. Bollheimer, in an action which HRS, acting on his behalf, brought against his former wife, Debra J. Bollheimer, seeking modification of a dissolution judgment wherein no child support was awarded to either party.1 The modification action was voluntarily dismissed by HRS and thereafter the trial court granted the former wife’s motion for attorney’s fees, which was based upon the contention that the modification motion failed to raise any justiciable issue of either law or fact. On the face of the record before us, it appears the trial court erroneously imposed the fee award against the wrong party. Assuming, arguendo, that there was ample basis for a section 57.105 fee award, that fee should have been assessed against HRS rather than against Larry Bollheimer, individually. See Department of Health and Rehabilitative Services v. Holland, 602 So.2d 652 (Fla. 5th DCA 1992); Department of Health and Rehabilitative Services v. Crossdale, 585 So.2d 481 (Fla. 4th DCA 1991). See generally Chapter 93-208, § 4, Laws of Florida. The failure of the trial court to assess the fee against HRS, however, has not been raised by cross-appeal. Accordingly, we reverse the attorney’s fee award entered by the trial court. REVERSED. PETERSON and DIAMANTIS, JJ., concur. Footnotes [1] See § 409.2564, Fla.Stat.