PHILLIP E. BAUCOM, APPELLANT,
v.
RUBY D. BAUCOM, APPELLEE

Fla. 3d DCA | 1981-04-07
No. 79-1454
Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
397 So. 2d 345 Florida District Court of Appeal, Third District (1981) Caution
Cited by 12 cases

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Holding

The court held that attorneys for a party in a marriage dissolution action cannot independently move for attorney's fees on appeal; only the party themselves can apply for such fees. Furthermore, fees cannot be awarded for services rendered after the attorneys have withdrawn and are proceeding in their own behalf.


Headnotes

[1] A party's attorneys have no standing under Section 61.16, Florida Statutes, to apply for an award of attorney's fees; only the party lacking adequate resources to obtain…

[2] An award of attorney's fees under Section 61.16, Florida Statutes, cannot be granted for legal services rendered after the attorneys have withdrawn as counsel for the par…

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Facts & Procedural History

Husband appealed a trial court order awarding attorney's fees to wife's former attorneys. The wife's former attorneys also moved for attorney's fees o…

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Opinion of the Court
HUBBART, Chief Judge.

HUBBART, Chief Judge.

This is an appeal by a husband in a marriage dissolution action from a final judgment entered below ordering him to pay an attorney’s fee to his wife’s former attorneys, upon the wife’s proper motion, for services rendered to the wife at the trial level. We find no abuse of discretion in the trial court’s entry of the attorney’s fee award herein, and accordingly, we affirm the judgment appealed from. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Shaw v. Shaw, 334 So. 2d 13 (Fla.1976); Pfohl v. Pfohl, 345 So. 2d 371 (Fla.3d DCA 1977). The wife’s former attorneys have also filed a motion here in their own name seeking an award of attorney’s fees pursuant to Section 61.16, Florida Statutes (1979) [as amplified by § 59.46(1), Fla.Stat. (1979)], for legal services allegedly rendered to the wife upon this appeal. Section 61.16, Florida Statutes (1979), provides as follows:

“The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.”

Section 59.46(1), Florida Statutes (1979), provides as follows:

“In the absence of an expressed contrary intent, any provision of a statute or of a contract entered into after October 1, 1977, providing for the payment of attorney’s fees to the prevailing party shall be construed to include the payment of attorney’s fees to the prevailing party on appeal.”

Prior to filing the above motion, the said attorneys were granted permission by this court to withdraw as counsel for the wife on this appeal and to proceed as an interested party to enforce the attorney’s fee award entered below from which this appeal is taken. See § 61.16, Fla.Stat. (1979). Thereafter, the said attorneys filed a brief in this court in their own behalf, which brief the wife, through her present counsel of record, specifically adopted by subsequent pleading. The said attorneys also presented an oral argument before this court in support of their position as an interested párty herein.

We have concluded, after considerable deliberation upon receiving briefs from the parties thereon, that the motion for attorney’s fees must be denied. We base this ruling on two grounds, either one of which standing alone is sufficient to defeat the motion.

A

First, the wife herein did not file the motion for attorney’s fees which, as we see it, is fatal to an attorney’s fee recovery in this case under the above statute. The primary purpose of the said statute is to insure that both parties to a marriage dissolution action have a similar ability to obtain counsel. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Bullard v. Bullard, 380 So. 2d 1090, 1092 (Fla.3d DCA 1980). Where a party lacks such ability to retain counsel, the statute authorizes the court to order the opposing party to pay reasonable attorney’s fees to the party in need. Implicit therein is the requirement that the party lacking the adequate resources to obtain counsel must apply to the court for an award of attorney’s fees under the statute; the party’s attorneys themselves have no standing under the statute to apply for such an award.

It is true that upon proper motion the trial court may enter an attorney’s fee award requiring that payment be made directly to the attorneys involved and that said attorneys may thereafter seek to enforce that award in their own name. But the statute does not authorize the attorneys themselves to make application, as urged here, for their own fees. It is equally true that the wife’s former attorneys in this case have been permitted by this court to proceed as an interested party upon this appeal, but that was only for the limited purpose of seeking to sustain the trial court award of attorney’s fees to them which had been sought below by the wife for legal services rendered at the trial level. Our order on that matter did not bootstrap the wife’s former attorneys into the shoes of the wife so that they, instead of she, could apply for an award of attorney’s fees in this court under the statute. The statute, in our view, contemplates that only a party to a marriage dissolution action may apply for such an award of attorney’s fees.

B

Secondly, the bulk, if not the entirety of the legal services performed by the wife’s former attorneys upon this appeal, was rendered after they no longer represented the wife. The said attorneys filed their brief herein and made their oral argument before this court at a time when they were proceeding in their own behalf as an interested party. True, these services incidentally benefited the wife herein, but such incidental benefit cannot constitute compensable legal services to the wife under the above statute.

Although we recognize that technically some minimal legal services may have been rendered prior to the attorneys’ withdrawal of counsel for the wife herein, we regard the legal work in totality here as essentially performed in defending their own interests as a party herein. It is elementary that a trial court has no authority to award attorney’s fees under the above statute for legal services which have not, in fact, been rendered to the party seeking such fees. See e. g, Tart v. Prebish, 257 So. 2d 616 (Fla.3d DCA 1972); Fla.Bar Code Prof.Resp., D.R. 2-106.

Affirmed. Motion for attorney’s fees denied.


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Citator

Cited By

  • Avie Lee Thornton v. Lacy Thornton, Jr., 433 So. 2d 682 (Fla. 5th DCA 1983)
    …overn the exercise of that authority. For example, some courts, in considering attorney’s fees for dissolution appeals, have utilized the “prevailing party” theory stemming from section 59.46(1), Florida Statutes (1981). See, e.g., Baucom v. Baucom, 397 So. 2d 345 (Fla. 3d DCA 1981); Heller v. Heller, 151 So. 2d 35 (Fla. 2d DCA 1963). Such fees, however, both at the trial and appellate levels, traditionally have been based on the concept of comparative abilities to secure counsel rather than on a party’s vict…
  • B.K. v. S.D.C., 122 So. 3d 980 (Fla. 2d DCA 2013)
    …erpreted section 61.16 to allow for appellate attorney fees even though it contained no such express language. See Bryan v. Bryan, 342 So. 2d 858 (Fla. 2d DCA 1977); Thornton v. Thornton, 433 So. 2d 682, 683-84 (Fla. 5th DCA 1983); Baucom v. Baucom, 397 So. 2d 345 (Fla. 3d DCA 1981); Sommese v. Sommese, 324 So. 2d 647 (Fla. 1st DCA 1976); Ludemann v. Ludemann, 317 So. 2d 860 (Fla. 4th DCA 1975). In 1994, the legislature codified this case law by amending chapter 61 to be consistent therewith. See Ch. 94-169,…
  • MacLEOD v. Hoff, 654 So. 2d 1250 (Fla. 2d DCA 1995)
    …s necessary. On remand, the parties are reminded that under section 61.16, Florida Statutes (1993), attorneys have no standing to apply for awards of fees in their own names. Robinson v. Hucker, 423 So. 2d 477 (Fla. 1st DCA 1982); Baucom v. Baucom, 397 So. 2d 345 (Fla. 3d DCA 1981). Instead, section 61.16 provides only that an attorney may enforce, in his own name, an award of fees to a party — made, of course, upon that party’s proper motion — where the trial court has entered a discretionary order indicati…

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