BETTY KATE BUTLER, APPELLANT,
v.
JAMES M. BUTLER, JR., APPELLEE
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The court held that a party's representation by a Legal Aid Society should not preclude an award of attorney's fees if the other party has the ability to pay.
Appellant sought attorney's fees in a divorce case. The trial court denied the fees, citing the appellant's representation by Legal Aid and the appell…
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PER CURIAM.
This is an appeal from an order denying Appellant’s motion for attorney’s fees in a divorce case.
In denying an award of attorney’s fees to Appellant, the trial judge held that:
“6. The Court does not award attorney’s fees where the subject matter has been determined to be a Legal Aid case by local Legal Aid Society in that legal aid should not be provided if the other party has the ability to pay a reasonable attorney’s fee, if awarded and if not a Legal Aid matter, parties should be sent to local Bar Association Legal Referral Services.”
As noted by Appellant, an award of attorney’s fees in domestic relations cases has traditionally been based on two factors: the need of the one party, and the ability of the other party to pay. Markland v. Markland, 21 So. 2d 145, 147 (Fla.1945). These factors were reiterated in the recent and factually similar case of Love v. Love, 370 So. 2d 1231 (Fla. 4th DCA 1979), where the court stated:
“As to an award of attorney’s fees, we see no reasonable basis on which to distinguish a client of a Legal Aid Society from one who retains private counsel. Accordingly, the judgment is reversed and this cause remanded with instructions to determine the need for attorney’s fees and the appellee’s ability to pay same. Assuming the judge finds that appellant is entitled to such an award, he shall determine the amount thereof.”
This Court reiterates that view. The cause is remanded to the trial court with instructions to reconsider the issue of attorney’s fees.
REVERSED and REMANDED.
CROSS, C. J., DAUKSCH, J., and MCDONALD, PARKER LEE, Associate Judge, concur.
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Miller v. Miller, 382 So. 2d 128 (Fla. 5th DCA 1980)…PER CURIAM. The order of the trial court denying the appellant’s motion for attorneys’ fees is reversed on the basis of this court’s recent ruling in Butler v. Butler, 376 So. 2d 287 (Fla. 5th DCA 1979). This cause is remanded for further proceedings consistent with the views expressed in Butler, supra. REVERSED AND REMANDED. CROSS, UPCHURCH and SHARP, JJ., concur.…
Authorities Cited
- Markland v. Markland, 155 Fla. 629 (Fla. 1945)
- Love v. Love, 370 So. 2d 1231 (Fla. 4th DCA 1979)