BURTON A. GREENBERG, APPELLANT,
v.
PATRICIA GREENBERG, APPELLEE
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Court reversed an award of attorney's fees to the wife because the record lacked proof of her financial inability to pay her own fees, and remanded for an evidentiary hearing on the parties' relative financial abilities.
An award of attorney's fees in a divorce case requires proof of the recipient's financial inability to pay and consideration of the parties' relative financial abilities.
[1] An award of attorney's fees in a family law matter requires evidence of the recipient's financial inability to pay and consideration of the relative financial abilities o…
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Join FLexlaw to unlock all legal intelligenceIn a divorce proceeding, the trial court awarded attorney's fees to the wife without establishing her financial inability to pay her own fees or consi…
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PER CURIAM.
The record is devoid of any proof of a financial inability of the wife to pay her own attorney’s fees. Johnson v. Johnson, 346 So. 2d 591 (Fla. 1st DCA 1977). See also Cummings v. Cummings, 330 So. 2d 134 (Fla.1976); Deatherage v. Deatherage (Fla. 5th DCA) (opinion filed February 25, 1981); Hill v. Hill, 376 So. 2d 472 (Fla. 4th DCA 1979); Robinson v. Robinson, 366 So. 2d 1210 (Fla. 1st DCA 1979); Ritter v. Ritter, 362 So. 2d 384 (Fla. 3d DCA 1978); Butts v. Butts, 362 So. 2d 349 (Fla. 1st DCA 1978); Watterson v. Watterson, 353 So. 2d 1185 (Fla. 1st DCA 1977).
Appellee’s argument is totally without merit. Because no formal order had been entered regarding attorney’s fees, the matter was not previously argued before, nor decided upon by this court.1 The law of the case applies where the same factual and legal issue is presented to the court a second time. See Greene v. Massey, 384 So. 2d 24 (Fla.1980); Braverman v. State, 393 So. 2d 1165 (Fla. 3d DCA 1981) (Schwartz, J., specially concurring).
The order awarding fees is reversed and the cause remanded for an evidentiary hearing to determine whether an award of attorney’s fees to the wife is appropriate considering the relative financial abilities of the parties; if an award is determined appropriate, the court is to also determine a reasonable fee based on the proof.
Reversed and Remanded.
. Point VI of appellee’s brief in the previous appeal states, “THE JUDGMENT APPEALED FROM DOES NOT BRING UP FOR REVIEW ANY AWARD OF COUNSEL FEES SINCE NO ORDER HAS BEEN ENTERED IN THE COURT BELOW FIXING COUNSEL FEES.”
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Saudi Arabian Airlines Corp. v. Dunn, 438 So. 2d 116 (Fla. 1st DCA 1983)…legations and not proof, the law of the case doctrine does not bar this court’s review of the proof presented at trial. The doctrine only applies where the same factual and legal issue is presented to the court a second time, Greenberg v. Greenberg, 397 So. 2d 1032 (Fla. 3rd DCA 1981), and not where the “facts and circumstances on this appeal are materially different from those on the former appeal.” Hendrick v. Strazzulla, 168 So. 2d 156, 161 (Fla. 2nd DCA 1964), cert. discharged 177 So. 2d 1 (Fla.1965). Guid…
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Child v. Child, 474 So. 2d 299 (Fla. 3d DCA 1985)…howing whatever as to one of the two indispensable prerequisites for such an order: her inability herself to pay the fees, and thus her “need” for Mr. Child to do so.4 See Cummings v. Cummings, 330 So. 2d 134, 136 (Fla.1976); Greenberg v. Greenberg, 397 So. 2d 1032 (Fla. 3d DCA 1981); Thoni v. Thoni, 179 So. 2d 420 (Fla. 3d DCA 1965). Ms. Child’s reference to the fact that her financial affidavit was on file is obviously unavailing both because it does not in fact show need and, far more important, because it…
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Cordelia Wallace v. P. L. Dodge Mem'l Hosp., 399 So. 2d 114 (Fla. 3d DCA 1981)…o trials with the identical evidence. This is not the case sub judice. Unless the earlier opinion and decision demonstrates that the factual basis was identical, the doctrine of the law of the case should not be applied. See: Greenberg v. Greenberg, 397 So. 2d 1032 (Fla.3d DCA 1981), wherein this court recently said: [*122] “. .. The law of the case applies where the same factual and legal issue is presented to the court a second time_” In reversing the summary judgment, the earlier opinion stated that “there…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Cummings v. Cummings, 330 So. 2d 134 (Fla. 1976)
- Fla. Prestressed Concrete Ass'n, Inc. v. Fla. Pub. Serv. Comm'n, 384 So. 2d 24 (Fla. 1980)
- Greene v. Massey, 384 So. 2d 24 (Fla. 1980)
- Johnson v. Johnson, 346 So. 2d 591 (Fla. 1st DCA 1977)
- Robinson v. Robinson, 366 So. 2d 1210 (Fla. 1st DCA 1979)
- Peerless Realty Co. & Jack Sakson v. Fla. Real Est. Comm'n ex rel. C. J. Feidel & Harold L. Clark, 353 So. 2d 1185 (Fla. 4th DCA 1977)
- Watterson v. Earline O. Watterson, 353 So. 2d 1185 (Fla. 1st DCA 1977)
- Ployer P. Hill v. Hill, 376 So. 2d 472 (Fla. 4th DCA 1979)
- Elliot W. Butts, Jr. v. Butts, 362 So. 2d 349 (Fla. 1st DCA 1978)
- Ritter v. Ritter, 362 So. 2d 384 (Fla. 3d DCA 1978)