IRVING GOLDEN, APPELLANT,
v.
ZINA GOLDEN, APPELLEE
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Summary judgment was inappropriate because the moving party (father) did not conclusively demonstrate the absence of disputed issues of fact regarding funds deposited under the Florida Gift to Minors Act for his son.
Summary judgment was inappropriate because the father failed to conclusively demonstrate that the funds deposited for his son were not expended for the son's benefit, thus rebutting the presumption of donative intent.
The father moved for summary judgment, arguing funds deposited for his son under the Florida Gift to Minors Act were spent on the son's education and …
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PER CURIAM.
In consolidated appeals, both parties challenge various financial aspects of the final judgment which dissolved their twenty-one-year marriage. We find error only in three respects.
First, the court should have credited the husband, when the proceeds of the parties’ residence are distributed, with half the amounts he expended for mortgage payments, taxes, insurance, utilities, and repairs. Abella-Fernandez v. Abella, 393 So. 2d 40 (Fla. 3d DCA 1981); Rutkin v. Rutkin, 345 So. 2d 400 (Fla. 3d DCA 1977); Lyons v. Lyons, 208 So. 2d 137 (Fla. 3d DCA 1968). In addition, we reverse the imposition of a $15,000 special equity in the home to the wife as unjustified by the record or the applicable law. Duncan v. Duncan, 379 So. 2d 949 (Fla.1980); see, Ball v. Ball, 335 So. 2d 5 (Fla.1976).
The other aspects of the court’s distribution of the Goldens’ assets represent an unassailable exercise of the trial court’s discretion under Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). Because, however, the result of these determinations is to place the wife in a financial status at least equal to the husband’s, we set aside the order awarding her attorneys’ fees. E.g., Pepper v. Pepper, 388 So. 2d 1342 (Fla. 3d DCA 1980); Pusey v. Pusey, 386 So. 2d 269 (Fla. 3d DCA 1980).
With the exceptions, then, of the failure to credit Mr. Golden with 50% of the home expenses, and the $15,000 special equity and attorneys’ fee awards, all of which are reversed, the judgment and orders under review are affirmed.
Affirmed in part, reversed in part.
BASKIN, Judge
(concurring in part, dissenting in part).
The majority’s reversal of the trial court’s decision to award the wife a $15,000 special equity in the marital home discards a well-established principle of law: it is not the function of the appellate court to reevaluate the evidence and substitute its judgment for that of the trial court. Shaw v. Shaw, 334 So. 2d 13 (Fla.1976). An appellate court merely decides whether the judgment entered by the trial court was supported by competent evidence. Koeppel v. Koeppel, 351 So. 2d 766 (Fla.3d DCA 1977). Applying that concept, I find that the wife presented testimony that her funds were used to purchase the house, and the evidence, though in conflict, was sufficient to support the trial court’s award. I would affirm.
The majority’s reversal of the award of attorneys’ fees to the wife departs from the holding of the supreme court in Cummings v. Cummings, 330 So. 2d 134 (Fla.1976), in which the court reiterated that the purpose of awarding attorneys’ fees is to “insure that both parties will have reasonably the same ability to secure competent legal counsel.” Id. at 136, citing Mertz v. Mertz, 287 So. 2d 691 (Fla. 2d DCA 1973).
The purpose of awarding fees is to enable the needier party to secure counsel on an equal footing, without regard to concerns that those fees will be deducted from the alimony subsequently awarded or will encumber existing assets. For that reason, it is not necessary that a spouse be completely unable to pay attorneys’ fees in order to be entitled to receive them. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Patterson v. Patterson, 399 So. 2d 73 (Fla. 5th DCA 1981); Scattergood v. Scattergood, 363 So. 2d 601 (Fla. 4th DCA 1978).
The effect of the majority opinion is to diminish the alimony award, Canakaris v. Canakaris, supra; Wilds v. Wilds, 399 So. 2d 1038 (Fla. 3d DCA 1981), a result not contemplated by the trial court. If that is the intent of the majority, the cause should be remanded to the trial court for reevaluation of its alimony award. In my view, however, the court's award of attorneys’ fees to the wife should be affirmed.
I concur in the remainder of the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By (12 total)
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Seitz v. Seitz, 471 So. 2d 612 (Fla. 3d DCA 1985)…sitions and, therefore, the award of attorney’s fees to the wife was error. Arsht v. Arsht, 467 So. 2d 421 (Fla. 3d DCA 1985); Cortina v. Cortina, 461 So. 2d 964 (Fla. 3d DCA 1984); Poppe v. Poppe, 412 So. 2d 38 (Fla. 3d DCA 1982); Golden v. Golden, 410 So. 2d 945 (Fla. 3d DCA), review denied, 419 So. 2d 1197 (Fla.1982); Bullard v. Bullard, 380 So. 2d 1090 (Fla. 3d DCA 1980); Bucci. Accordingly, the final judgment of dissolution is affirmed but the order awarding attorney’s fees to the wife is reversed. .Th…
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Anne-Lise Gustafson v. Dorrit Jensen, 515 So. 2d 1298 (Fla. 3d DCA 1987)…ion would not result in prejudice, each party should assume responsibility for the fees incurred while pleading his or her cause. Seitz v. Seitz, 471 So. 2d 612 (Fla. 3d DCA 1985); Arsht v. Arsht, 467 So. 2d 421 (Fla. 3d DCA 1985); Golden v. Golden, 410 So. 2d 945 (Fla. 3d DCA), review denied, 419 So. 2d 1197 (Fla.1982). Contrary to appellant’s contention, the trial court was not divested of jurisdic [*1302] tion in the dissolution cause by the probate proceedings where the issue under consideration pertaine…
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Arsht v. Arsht, 467 So. 2d 421 (Fla. 3d DCA 1985)…ual financial positions precludes the award of attorney’s fees to the wife. Cortina v. Cortina, 461 So. 2d 964 (Fla. 3d DCA 1984); Lopez v. Lopez, 438 So. 2d 984 (Fla. 3d DCA 1983); Poppe v. Poppe, 412 So. 2d 38 (Fla. 3d DCA 1982); Golden v. Golden, 410 So. 2d 945 (Fla. 3d DCA), review denied, 419 So. 2d 1197 (Fla.1982). Reversed.…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (17 total)
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976)
- Shannon v. State, 335 So. 2d 5 (Fla. 1976)
- Duncan v. Duncan, 379 So. 2d 949 (Fla. 1980)
- Cummings v. Cummings, 330 So. 2d 134 (Fla. 1976)
- Helene Leslie Lyons v. Lyons, 208 So. 2d 137 (Fla. 3d DCA 1968)
- Patterson v. Patterson, 399 So. 2d 73 (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)
- Oaklander v. Jules Oaklander, 351 So. 2d 766 (Fla. 3d DCA 1977)