KARL F. WENZ, JR., APPELLANT,
v.
MARTEL COLLINGS, F/K/A MARTEL WENZ, APPELLEE
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Karl Wenz appealed a trial court order modifying child support and awarding partial attorney's fees to his ex-wife Martel Collings following her petition for modification. The appellate court affirmed the increase in child support but reversed the attorney's fee award, finding the parties had similar financial abilities to secure counsel.
The court affirmed the modification of child support, finding no abuse of discretion where the father's income increased 25%, only one child remained to support (rather than two), and evidence showed increased need on the part of the minor child. The court reversed the attorney's fee award, holding that the parties had similar financial abilities to secure competent legal counsel and no fee was necessary to prevent inequitable diminution of the ex-wife's economic status.
[1] A trial court does not abuse its discretion in modifying child support when a child reaches majority, the obligor's income has increased, and the remaining child's needs…
[2] A party seeking attorney's fees under section 61.16, Florida Statutes, must demonstrate that the award is necessary to ensure a similar ability to secure competent legal…
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Join FLexlaw to unlock all legal intelligence“the purpose of section 61.16, Florida Statutes, was to ensure that both parties will have similar ability to secure competent legal counsel.”
Establishes the statutory standard for awarding attorney's fees in family law modifications
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Join FLexlaw to unlock all legal intelligenceKarl and Martel Wenz executed a property settlement agreement in 1972 providing for $125 per month child support for each of two children until age ei…
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COBB, Judge.
This is an appeal from an order of the trial court modifying a child support provision and granting a partial attorney’s fee to the movant below, Martel Codings. The background leading up to the entry of the trial court’s order was: Karl and Martel Wenz entered into a property settlement agreement in 1972, which provided for Karl Wenz to pay $125.00 per month for each of two minor children until they reached eighteen years of age. Subsequently, this agreement was incorporated into the judgment of dissolution.
In March, 1981, Martel, who had subsequently married a man named Codings, filed a petition for modification citing, inter alia, the fact that one child had reached majority, an approximate 25% increase in her ex-husband’s income subsequent to dissolution, and the increased needs of the remaining minor child occurring subsequent to the entry of the original judgment. The order herein appealed, which provided for an increase in child support to $300 per month for the remaining minor child, was entered by the trial court following a hearing on October 5, 1981.
Both Karl Wenz and Martel Codings filed financial statements before the trial court at the modification hearing. Karl Wenz placed his average gross income at $800 per week, and listed his assets at $103,345 with liabilities of $60,000. Since the dissolution, his gross salary had increased from $30,036 to $41,600. Martel Codings, who was earning approximately $6,500 to $7,000 per year at the time of the dissolution of her marriage to Karl, had a present gross income as a mathematician of approximately $18,500. Additionally, she received economic benefits and advantages from her remarriage to Codings, who has an approximate annual income of $20,000.
The increase of child support ordered by the trial court means that the father, who now has the legal obligation to support only one minor child rather than two, is obligated to provide $3,600 per year toward the support of the remaining minor daughter. His present gross annual income is in excess of $41,000. Under these circumstances, together with evidence indicating an increased need on the part of the minor child, we cannot find that the trial judge abused her discretion in granting the modification petition. See Petersen v. Petersen, 392 So. 2d 298 (Fla. 4th DCA 1980).
The award of partial attorney’s fees to the ex-wife, however, is another matter. As stated in Canakaris v. Canakaris, 382 So. 2d 1197, 1205 (Fla.1980), “the purpose of section 61.16, Florida Statutes, was to ensure that both parties will have similar ability to secure competent legal counsel.” In the instant case, the evidence is clear that the parties had similar abilities to secure competent legal counsel insofar as their respective financial positions stood at the time of the modification hearing. No award of an attorney’s fee was necessary to avoid “an inequitable diminution” of the ex-wife’s economic status or security. See Canakaris, 382 So. 2d at 1205. This is not a situation comparable to that in Patterson v. Patterson, 399 So. 2d 73 (Fla. 5th DCA 1981), wherein one party was forced to seek enforcement of a court order by the delinquency of the other party.
Accordingly, we affirm the order of the trial court insofar as it increased the award of child support for the minor daughter of the parties, and we reverse the award of a partial attorney’s fee to the ex-wife.
AFFIRMED in part; REVERSED in part.
DAUKSCH, J., concurs.
FRANK D. UPCHURCH, Jr., J., dissents in part with opinion.
FRANK D. UPCHURCH, Jr., Judge,
dissenting in part.
I respectfully dissent in part. I do not think that the award of partial attorney’s fees in this instance was an abuse of discretion. See, e.g., Price v. Price, 389 So. 2d 666 (Fla. 3d DCA 1980). The husband’s assets and income were more than twice those of the wife. I would affirm the order of the trial court in toto.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Price v. Price, 389 So. 2d 666 (Fla. 3d DCA 1980)
- Patterson v. Patterson, 399 So. 2d 73 (Fla. 5th DCA 1981)
- Petersen v. Henrik Petersen, 392 So. 2d 298 (Fla. 4th DCA 1980)