CHESTER A. KOLB, APPELLANT,
v.
AUDREY C. KOLB, APPELLEE
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The Florida Supreme Court affirmed a divorce decree but remanded for correction of an attorney's fee award, due to an equal division among the justices on the main issue.
The Court affirmed the decree denying divorce because the justices were equally divided. However, the Court held that the attorney's fees should have been awarded to the defendant or paid into the registry of the court for the solicitor's use, not directly to the solicitor.
“When the members of the Supreme Court, sitting six members in a body, and after full consultation it appears that the members of the Court are permanently and equally divided in opinion as to whether the decree should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the Court, the decree should be affirmed.”
This quote explains the court's reasoning for affirming the decree when the justices are equally divided.
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Join FLexlaw to unlock all legal intelligenceThis case involves an appeal of a divorce decree. The primary dispute on appeal concerned the decree itself, with the court divided equally on whether…
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In this ease Mr. Chief Justice Buford, Mr. Justice Writfield and Mr. Justice Terrell are of the opinion that the decree of the Circuit Court should be affirmed except as to the order in regard to attorney’s fees hereinafter mentioned, while Mr. Justice Davis, Mr. Justice Brown and Mr. Justice Ellis are of the opinion that the cause should be reversed and remanded, all members of the Court concurring in the opinion that there was error, however, in the decree awarding attorney’s fees to be paid to the solicitor for the defendant. The solicitor was not a party to the suit' and, therefore, the award of attorney’s fees should have been that the same be paid to the defendant or paid into the registry of the court for the use of the solicitor for the defendant. See Smith vs. Smith, 90 Fla. 824, 107 Sou. 257.
When the members of the Supreme Court, sitting six members in a body, and after full consultation it appears that the members of the Court are permanently and equally divided in opinion as to whether the decree should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the Court, the decree should be affirmed.
*195It is, therefore, considered, ordered and adjudged under the authority of State ex rel. Hampton vs. McClung, 47 Fla. 224, 37 Sou. 51, that the decree denying divorce should be affirmed and the case remanded with directions that the chancellor reform the decree in regard to attorney’s fees as herein suggested.
Affirmed and remanded.
Buford, C.J., and Whitfield, Ellis, Terrell, Brown and Davis, J.J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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The Valparaiso Bank & Tr. Co. C. T. A. of the Est. of Coleman L. Kelly v. Sims, 343 So. 2d 967 (Fla. 1st DCA 1977)…t by one spouse to the other’s lawyer, either as a debt or as a penalty. See Keena v. Keena, 245 So. 2d 665, 667 (Fla.1st DCA 1971); Chaachou v. Chaachou, 135 So. 2d 206, 223 (Fla.1961); Smith v. Smith, 90 Fla. 824, 107 So. 257 (1925); Kolb v. Kolb, 103 Fla. 193, 137 So. 237 (1931); Hope v. Lipkin, 156 So. 2d 659 (Fla.3d DCA 1963). The 1968 contract between Mrs. Kelly and her lawyer might properly be considered as limiting the amount of his compensation above $1,500 to the amount recoverable by Mrs. Kelly i…
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Novack v. Novack, 210 So. 2d 215 (Fla. 1968)…ld be made directly to the wife’s attorney, it did not alter the essential legal nature of the allowance as one to the wife of suit money to defray her cost for counsel fees as has been held in Smith v. Smith, 90 Fla. 824, 107 So. 257; Kolb v. Kolb, 103 Fla. 193, 137 So. 237, and Scanlon v. Scanlon (Fla.App.1st), 154 So. 2d 899. The award of attorney’s fees in the instant case is part and parcel of the result of the litigation between the spouses and cannot be separated therefrom by awarding the fees direct…
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Novack v. Novack, 203 So. 2d 187 (Fla. 3d DCA 1967)…irecting the payment of the fees to the wife; therefore, the set-off of the costs payable from the wife should be allowed against the fees properly payable to the wife. Appellant relies upon Smith v. Smith, 90 Fla. 824, 107 So. 257 and Kolb v. Kolb, 103 Fla. 193, 137 So. 237. This argument appears to overlook the fact that § 65.17 Fla.Stat. (1965), F.S.A. was amended in 1945 to provide that in a divorce proceeding the court may direct that such allowances be paid to the attorneys. While this amendment does…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The State of Fla. ex rel. Hiram J. Hampton v. McClung, 47 Fla. 224 (Fla. 1904)
- Smith v. Smith, 107 So. 257 (Fla. 1925)
- Bouis v. Trusten B. Drake, 90 Fla. 824 (Fla. 1925)
- Smith v. Smith, 90 Fla. 824 (Fla. 1925)