JOHN H. PATTERSON, APPELLANT,
v.
LOUISE N. PATTERSON, APPELLEE
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In this Florida dissolution enforcement case, the trial court denied the former husband's petition to modify the final judgment, held him in contempt for willfully refusing to comply with its terms, and awarded the wife $2,600 in attorney fees plus costs. The Fifth District Court of Appeal affirmed, holding that a spouse seeking enforcement of a dissolution judgment due to the other spouse's willful noncompliance may recover attorney fees without proving complete inability to pay.
The court affirmed all aspects of the trial court's order. The court held that when a spouse must seek enforcement of a dissolution judgment due to the other spouse's willful refusal to comply, the trial court may award attorney fees by considering the disregard of the court's order, without requiring the requesting spouse to prove complete inability to pay the fees.
[1] A trial court does not abuse its discretion by refusing to modify a final judgment of dissolution or by holding a party in contempt for wilful refusal to comply with its…
[2] Statutory authority for awarding attorney fees in dissolution proceedings, including enforcement and modification, is found in section 61.16, Florida Statutes.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is not necessary that one spouse be completely unable to pay attorney's fees in order for the trial court to require the other spouse to pay these fees. Given the complexity of the cause and the time necessary to appropriately resolve the issues, the award of attorney's fees in this case was proper to avoid an inequitable diminution of the fiscal sums granted the wife in these proceedings.”
Establishes the modified standard from Canakaris v. Canakaris that eliminates the strict requirement of proving complete inability to pay attorney fees.
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Join FLexlaw to unlock all legal intelligenceJohn Patterson was ordered by the final judgment of dissolution to comply with certain terms. He willfully refused to comply with these terms, necessi…
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ORFINGER, Judge.
The order appealed from denied the appellant’s petition to modify the final judgment of dissolution, granted the appellee’s motion to hold appellant in contempt for wilful refusal to comply with the terms of the final judgment, and awarded the wife an attorney fee of $2600 plus costs of this proceeding. The former husband appeals and we affirm.
Appellant fails to demonstrate an abuse of the court’s discretion in refusing to modify the final judgment or in adjudging him in contempt for wilful refusal to comply with its terms, and no useful purpose would be served by discussion of these issues. Appellant’s contention that the wife did not show entitlement to an award of attorney fees deserves further consideration.
Statutory authority for the award of attorney fees in dissolution proceedings, including enforcement and modification, is found in section 61.16, Florida Statutes (1979).1 The general rule is that the purpose in awarding attorney fees is to ensure that both parties will have the same opportunity to secure counsel. Deatherage v. Deatherage, 395 So. 2d 1169 (Fla. 5th DCA, 1981); Mertz v. Mertz, 287 So. 2d 691 (Fla.2d DCA 1973). Prior to Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980), it had been held that to be entitled to an attorney’s fee, the requesting spouse must show, among other things, that he or she was unable to pay it. See, e. g., Patterson v. Patterson, 348 So. 2d 592 (Fla. 1st DCA 1977).2 This strict requirement was modified by the Supreme Court in Canakaris, where it was held:
It is not necessary that one spouse be completely unable to pay attorney’s fees in order for the trial court to require the other spouse to pay these fees. Given the complexity of the cause and the time necessary to appropriately resolve the issues, the award of attorney’s fees in this case was proper to avoid an inequitable diminution of the fiscal sums granted the wife in these proceedings.
382 So. 2d at 1205.
We hold that where, as here, it is necessary for a spouse to seek enforcement of the final judgment because of wilful refusal of the other spouse to comply with its terms, the trial court may take into account the disregard by that other spouse of the court’s order in considering a motion to assess attorney fees. Spencer v. Spencer, 305 So. 2d 256 (Fla.3d DCA 1974), cert. denied, 351 So. 2d 470 (Fla.1975). We agree with that portion of the specially concurring opinion of Judge McCord in Patterson, where, in discussing the effect of section 61.16, Florida Statutes (1979), in an enforcement proceeding he said:
This statute vests authority in the trial court to order a party to pay a reasonable amount for attorney’s fees for the other party after considering the financial resources of both parties. I do not construe this to mean that the party requesting an award of attorney’s fees must be unable to pay the fees in order to secure such an award. This is particularly true where a party has become delinquent in child support payments, and it becomes necessary for the other party to bring a contempt proceeding to require that the court’s order be complied with. A party bringing such a proceeding should not have the burden of showing that he or she cannot pay the fee in order to secure an award of his or her attorney’s fees which were necessitated by the other party’s noncompliance with the court order. 348 So. 2d at 596-97.
The order appealed from is AFFIRMED.
COBB and SHARP, JJ., concur. . § 61.16, Fla.Stat. (1979): 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.
. Not the same parties as the case sub judice.
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Citator
Cited By (23 total)
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Nichols v. Nichols, 519 So. 2d 620 (Fla. 1988)…. Levy, 483 So. 2d 455 (Fla. 3d DCA), review denied, 492 So. 2d 1333 (Fla.1986); Linn v. Linn, 464 So. 2d 614 (Fla. 4th DCA 1985); Bryan v. Bryan, 442 So. 2d 362 (Fla. 1st DCA 1983), review denied, 450 So. 2d 485 (Fla. 1984); Patterson v. Patterson, 399 So. 2d 73 (Fla. 5th DCA 1981); Fried v. Fried, 390 So. 2d 392 (Fla. 2d DCA 1980), review denied, 399 So. 2d 1142 (Fla.1981).…
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Peak v. Ewell A. Peak, 411 So. 2d 325 (Fla. 5th DCA 1982)…1976). However, the purpose of section 61.16, Fla.Stat. (1979), permitting the trial court to award attorney’s fees in a dissolution proceeding, is to insure that both parties will have the same opportunity to secure counsel. Patterson v. Patterson, 399 So. 2d 73 (Fla. 5th DCA 1981). Where one spouse has a superi- or financial ability to secure counsel, it is not necessary that the other spouse be completely unable to pay attorney’s fees. Canakaris, 382 So. 2d at 1205. In the instant case, it seems clear tha…
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Meloan v. Coverdale, 525 So. 2d 935 (Fla. 3d DCA 1988)…d 504, 507 (Fla. 3d DCA 1982). See also Keena v. Keena, 245 So. 2d 665 (Fla. 1st DCA 1971) (right to counsel fees in a dissolution proceeding is not absolute right but is founded upon equitable principles). The court held in Patterson v. Patterson, 399 So. 2d 73 (Fla. 5th DCA 1981), that where a spouse must seek judicial enforcement of a final judgment because of the other spouse’s willful refusal to comply with its terms, the trial court may consider the recalcitrant spouse’s disregard of the court’s order…
Previewing 3 of 23 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Patterson v. Patterson, 348 So. 2d 592 (Fla. 1st DCA 1977)
- Deatherage v. Deatherage, 395 So. 2d 1169 (Fla. 5th DCA 1981)
- Hernandez v. Hernandez, 287 So. 2d 691 (Fla. 2d DCA 1973)
- Mertz v. Mertz, 287 So. 2d 691 (Fla. 2d DCA 1973)
- Spencer v. Mrs. Rochelle Terebelo Spencer, 305 So. 2d 256 (Fla. 3d DCA 1974)