WILLIAM C. ELSWICK, APPELLANT,
v.
JUDY GALE MARTINEZ, APPELLEE
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In a paternity suit under Florida law, the appellate court affirmed the trial court's awards of child support, expert witness fees, travel expenses, and costs incident to birth, but reversed the portion of attorney's fees attributed to appellate legal services, which must be sought directly in the appellate court rather than awarded by the trial court.
The trial court properly awarded child support, expert witness fees, travel expenses, and costs incident to birth pursuant to Florida Statutes section 742.031. However, the trial court lacked authority to award appellate legal fees, which must be sought by appropriate timely motion in the appellate court itself, and the $1,000 awarded for appellate legal services must be deleted from the total award.
[1] A trial court has the authority to order a father to pay reasonable attorney's fees, hospital or medical expenses, cost of confinement, and any other expenses incident to…
[2] A trial court may order a father to pay periodic support for a child and all taxable costs of paternity proceedings.
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Join FLexlaw to unlock all legal intelligence“the court shall determine the issues of paternity of the child, and the ability of the parents and each of them to support the child and if the court shall find the defendant to be the father of the child he shall so order and shall further order the defendant to pay the complainant, her guardian or such other person assuming responsibility for the child as the judge may direct, such sum or sums as shall be sufficient to pay reasonable attorney's fee, hospital or medical expenses, cost of confinement and any other expenses incident to the birth of such child”
Establishes the statutory authority under section 742.031 for trial courts to order paternity defendants to pay child support and related expenses including attorney's fees and birth-related costs
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Join FLexlaw to unlock all legal intelligenceWilliam C. Elswick was found to be the father of Judy Gale Martinez's child in a contested paternity suit brought under Chapter 742, Florida Statutes …
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BASKIN, Judge.
We affirm the orders entered by the trial court pertaining to child support, expert witness fees, travel expenses, and costs incident to birth in a contested paternity suit brought pursuant to Chapter 742, Florida Statutes (1975). The awards, including costs incident to birth awarded to the State of Tennessee, are within the purview of section 742.031:
Same; hearings; court orders, support, hospital expenses, etc. — Hearings for the purpose of establishing or refuting the allegations of the complaint and answer shall be held in the chambers and may be restricted to such persons, in addition to the parties involved and their counsel, as the judge in his discretion may direct. The court shall determine the issues of paternity of the child, and the ability of the parents and each of them to support the child and if the court shall find the defendant to be the father of the child he shall so order and shall further order the defendant to pay the complainant, her guardian or such other person assuming responsibility for the child as the judge may direct, such sum or sums as shall be sufficient to pay reasonable attorney’s fee, hospital or medical expenses, cost of confinement and any other expenses incident to the birth of such child. In addition the court shall order the defendant to pay periodically for the support of such child such sums as shall be fixed by the court in accordance with the provisions of this act, and also all taxable costs of the proceedings. Upon request of either party, the issue of the paternity of such child may be tried by jury and the chancellor shall transfer the cause for the determination of such issue.
In addition, we affirm the order awarding legal fees to appellee’s attorney with the exception of that portion expressly attributed by the court to legal services in connection with a prior appeal.1 Appellate legal fees must be sought in the appellate court by appropriate timely motion. Fla.R. App.P. 9.400(b). Since the trial court lacked authority to award appellate fees absent a remand by this court, Travelers Indemnity Co. of America v. Morris, 390 So. 2d 464 (Fla. 3d DCA 1980), we order the $1,000 awarded for appellate legal services deleted from the total award.
Affirmed in part, reversed in part, and remanded.
. The father appealed the trial court’s denial of his motion to transfer the cause to Tennessee. We affirmed the trial court’s decision in El-swick v. Martinez, 341 So. 2d 1095 (Fla. 3d DCA 1976).
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Hornsby v. Newman, 444 So. 2d 90 (Fla. 4th DCA 1984)…d indicates that the trial court impermissibly compensated appellee’s counsel for services rendered during prior appeals. Absent a remand from an appellate court, a trial court lacks authority to award appellate attorney’s fees. Elswick v. Martinez, 394 So. 2d 529 (Fla. 3d DGA 1981). Furthermore, there is another, perhaps even more glaring deficiency in the record. Appellee/mother failed to establish her need for, and the father’s ability to pay a reasonable attorney’s fee. Cf. Davis [*92] v. Department of He…
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Margaret Dunstan & the Dep't of Health & Rehabilitative Servs. v. Donnie Weatherspoon, 505 So. 2d 23 (Fla. 3d DCA 1987)…da Statutes (1985). We think the trial court could have reasonably concluded that the father could not afford any more child support, given his limited financial circumstances. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Elswick v. Martinez, 394 So. 2d 529 (Fla. 3d DCA 1981); Farrington v. Farrington, 390 So. 2d 461 (Fla. 3d DCA 1980), pet. for review dismissed, 399 So. 2d 1142 (Fla.1981); Blum v. Blum, 382 So. 2d 52, 55 (Fla. 3d DCA 1980). The final order of child support is affirmed in all respect…
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Schere v. Z.F., Inc., 578 So. 2d 739 (Fla. 3d DCA 1991)…orney’s fees must also be affirmed. The trial court correctly determined that absent a mandate from this court awarding appellate fees, it is without authority to grant them. Hornsby v. Newman, 444 So. 2d 90 (Fla. 4th DCA 1984); Elswick v. Martinez, 394 So. 2d 529 (Fla. 3d DCA 1981). Reversed in part and remanded, affirmed in part. . Tobin, Compte and Unhjem are not parties to this appeal.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Travelers Indem. Co. OF Am. v. Morris, 390 So. 2d 464 (Fla. 3d DCA 1980)