Fifth District, in an en banc decision, recedes from prior precedent and rules attorney’s fees may now be awarded on appeal in paternity proceedings.

In a 7-2 en banc decision, the Fifth District Court of Appeal, receded from its prior holdings in Starkey v. Linn, 727 So. 2d 386 (Fla. 5th DCA 1999) and allowed an award of appellate attorney’s fees in paternity actions. Harris Appellate Law Office filed a motion on behalf of the mother, seeking appellate attorney’s fees. The court examined section 742.045, Florida Statutes, and determined that the statue unambiguously provides for an award of attorney’s fees for maintaining or defending any proceeding under this chapter. The court further determined that the phrase “any proceeding” should be given its plain and ordinary meaning, which includes an appeal. The court awarded appellate attorney’s fees to the mother who was defending her and her children’s rights on appeal. McNulty v. Bowser, 5D16-3330 (January 5, 2018).
In granting the mother’s motion, the Fifth District changed its nearly twenty-year old precedent and joined the Second and Fourth District Courts of Appeal in allowing attorney’s fees in paternity actions. The Second District remarked that to preclude an award of attorney’s fees would run afoul of equal protection concerns by treating parents of illegitimate children differently than parents of legitimate children, who are entitled to an award of attorney’s fees on appeal in custody disputes under section 61.16, Florida Statutes.
The First and Third District Court of Appeal has yet to address this issue.