JOHN CLARK HUDGENS, JR., APPELLANT,
v.
NOEL P. HUDGENS, APPELLEE
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In this alimony modification case, the Florida appellate court affirmed the trial court's denial of the husband's petition to terminate permanent alimony and the wife's petition to increase it, but reversed the limitation on attorney's fees awarded to the wife. The court held that the wife was entitled to recover all reasonable attorney's fees based on the parties' disparate financial circumstances, not merely fees for collecting arrearages.
The court affirmed the denial of both the husband's termination petition and the wife's increase petition as within the trial court's discretion. However, the court held that the wife was entitled to recover all reasonable attorney's fees for both trial and appellate services, not merely fees for collecting arrearages, based on the substantial disparity in the parties' financial circumstances.
[1] A court acts within its discretion in denying a petition to terminate permanent alimony when there is an evidentiary basis for the decision.
[2] A court's determination of credits against alimony arrearages will not be disturbed on appeal if supported by an evidentiary basis.
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“the award of attorney's fees in a dissolution proceeding depends not upon who wins but rather upon the relative financial circumstances of the parties.”
Establishes the governing standard for attorney's fees awards, which focuses on financial disparity rather than success on the merits
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Join FLexlaw to unlock all legal intelligenceThe Hudgens' marriage was dissolved in 1972 under a judgment incorporating a property settlement agreement providing for lump sum and permanent alimon…
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GRIMES, Acting Chief Judge.
The Hudgens’ marriage was dissolved in 1972 pursuant to a judgment which incorporated a property settlement agreement that provided for the payment of lump sum and permanent alimony to the wife. Recently, upon petition and counterpetition of the parties, the court entered an order which denied the husband’s petition for termination of permanent alimony and the wife’s petition for an increase in alimony. The order also granted in part the wife’s petition for a determination of arrearages in alimony payments and awarded attorney’s fees to the wife for the services of her attorney in collecting the arrearages. The husband appeals the denial of his petition to terminate alimony. The wife cross-appeals the denial of her petition to increase alimony, the determination of certain credits which the court applied against the husband’s arrearages, and the failure of the court to award attorney’s fees for the balance of her attorney’s services in this proceeding.
After reviewing the record, we have concluded that the court acted properly within its discretion in denying the husband’s petition to terminate alimony and in refusing to grant the wife’s petition to increase the alimony. The testimony and documents pertaining to the credit against the arrearages were complicated and conflicting. However, because there was an evidentiary basis for the amount of credit as determined by the court, this must not be disturbed. This leaves only the issue of attorney’s fees.
We agree with the wife that the court should not have limited the award of attorney’s fees to those services connected with the collection of the arrearages. At the outset, we cannot see why if the wife was entitled to attorney’s fees for the collection of the husband’s back alimony, she was not also entitled to attorney’s fees for successfully defending against the husband’s petition to terminate the alimony. In the final analysis, however, the award of attorney’s fees in a dissolution proceeding depends not upon who wins but rather upon the relative financial circumstances of the parties. § 61.16, Fla.Stat. (1981); Johnson v. Johnson, 403 So. 2d 1388 (Fla. 2d DCA 1981); Gray v. Gray, 362 So. 2d 294 (Fla. 2d DCA 1978).
Since the wife’s claim for modification was not spurious, the fact that she lost on this issue does not mean that she could not be a candidate to receive attorney’s fees. The husband has earned over $100,000 a year as a doctor for the last several years, while the wife’s annual salary has averaged about $14,000. The husband’s net worth is more than four times the wife’s net worth of $100,000. Admittedly, the wife could pay the balance of her attorney’s fees by dipping into her savings, but law does not require this. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). Because of the husband’s superior financial position, he should pay all of the wife’s reasonable attorney’s fees in this proceeding.
We affirm the judgment with the exception of the attorney’s fees question and remand the case for a determination of reasonable attorney’s fees to be paid by the husband to the wife for all the services of her attorney on both the trial and appellate levels.
OTT and SCHOONOVER, JJ., concur.
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Citator
Cited By (21 total)
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Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997)…2d 163 (Fla. 1st DCA 1995); Fabre v. Levine, 618 So. 2d 317 (Fla. 1st DCA), review denied, 629 So. 2d 132 (Fla.1993); Allen v. Heinrich, 623 So. 2d 540 (Fla. 2d DCA 1993); Chertoff v. Chertoff, 553 So. 2d 179 (Fla. 3d DCA 1989); Hudgens v. Hudgens, 411 So. 2d 354 (Fla. 2d DCA 1982). As these cases reflect, section 61.16 has long been interpreted to require a judge to consider the needs of the party seeking a fee and the financial resources of the parties in determining entitlement to attorney’s fees to ensur…1 / 2
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Ardith Nisbeth v. Nisbeth, 568 So. 2d 461 (Fla. 3d DCA 1990)…ees. Martinez-Cid v. Martinez-Cid, 559 So. 2d 1177 (Fla. 3d DCA 1990); Kuse v. Kuse, 533 So. 2d 828 (Fla. 3d DCA 1988); Blackburn v. Blackburn, 513 So. 2d 1360 (Fla. 2d DCA 1987); Poppe v. Poppe, 412 So. 2d 38 (Fla. 3d DCA 1982); Hudgens v. Hudgens, 411 So. 2d 354 (Fla. 2d DCA 1982). In this case there is a clear difference in the parties’ earning capacities which results in a significant disparity in the parties’ overall financial circumstances. Thus, even though the assets were equally divided, the parties…
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Mandy v. Williams, 492 So. 2d 759 (Fla. 4th DCA 1986)…l that the trial judge abused his discretion in failing to award her attorney’s fees and costs. Award of attorney’s fees in a dissolution of marriage proceeding depends upon “the relative financial circumstances of the parties.” Hudgens v. Hudgens, 411 So. 2d 354, 355 (Fla. 2d DCA 1982). This court has held that a trial court’s failure to award fees to a wife whose financial position is substantially inferior to her husband’s constitutes abuse of discretion. McClay v. McClay, 447 So. 2d 1026 (Fla. 4th DCA 19…
Previewing 3 of 21 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)
- Johnson v. Johnson, 403 So. 2d 1388 (Fla. 2d DCA 1981)
- Gray v. Gray, 362 So. 2d 294 (Fla. 2d DCA 1978)