GARY A. ROBINSON, APPELLANT,
v.
BARBARA KAY SWAIM, A/K/A BARBARA KAY ROBINSON, APPELLEE

Fla. 2d DCA | 1982-09-17
No. 82-605
HOBSON, A. C. J., and DANAHY, J„ concur.
419 So. 2d 414 Florida District Court of Appeal, Second District (1982) Caution
Cited by 4 cases

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Holding

The court held that the trial court erred in awarding attorney's fees because the parties' marriage had been terminated and the action did not concern enforcement or modification of the final divorce decree.

Facts & Procedural History

The parties' marriage was dissolved, and the final judgment did not award attorney's fees. Subsequently, the husband filed an action to enjoin the wif…

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Opinion of the Court
BOARDMAN, Judge.

BOARDMAN, Judge.

Gary A. Robinson (the husband) appeals a postjudgment order granting a motion for attorney’s fees to appellant’s ex-wife. We reverse.

The parties’ marriage was terminated by default, and the final judgment of dissolution did not provide for attorney’s fees. Subsequently, the trial court granted the wife’s motion for attorney’s fees in a separate action brought by the husband seeking to enjoin the wife from pursuing an alimony suit she had instituted in North Carolina. The trial court denied injunctive relief to the husband and provisionally granted the wife’s motion for attorney’s fees incurred in defending against the petition for injunc tion, the amount to be determined later based on a showing of need.

Section 61.16, Florida Statutes (1981) provides that a party may be entitled to reasonable attorney's fees in any proceeding under Chapter 61. However, the statute does not apply in the absence of a marital relationship unless the matter pertains to an enforcement or modification of the final divorce decree. Kang v. Kang, 386 So. 2d 602 (Fla. 5th DCA 1980).

Inasmuch as the parties’ marriage had previously been terminated without any award of attorney’s fees and the present action did not concern enforcement or modification of the judgment of dissolution, an award of attorney’s fees pursuant to section 61.16 was not authorized.

Accordingly, the order granting the wife’s motion for attorney’s fees is REVERSED.

HOBSON, A. C. J., and DANAHY, J„ concur.

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Citator

Cited By

  • Bane v. Consuella Kathleen Bane, 775 So. 2d 938 (Fla. 2000)
    …section 61.16 fees where the proceedings were not filed under chapter 61 and did not pertain to enforcement or modification of the final judgment of dissolution. See, e.g., Battista v. Battista, 585 So. 2d 459 (Fla. 1st DCA 1991); Robinson v. Swaim, 419 So. 2d 414, 415 (Fla. 2d DCA 1982). In Battista, for example, the First District reversed an award of fees under section 61.16 in a separate action for declaratory judgment in which the former husband alleged that he was entitled to rent from his former wife.…
  • Battista v. Battista, 585 So. 2d 459 (Fla. 1st DCA 1991)
    …f marriage, § 61.16, Florida Statutes (1989), does not apply in the absence of a marital relationship unless the matter pertains to an enforcement or modification of the final decree. See Kittel v. Kittel, 210 So. 2d 1 (Fla.1967); Robinson v. Swaim, 419 So. 2d 414 (Fla. 2d DCA 1982). Accordingly, we reverse the award of attorney’s fees. We find, however, that further proceedings are required. The order of the trial court awarding attorney’s fees did not specify under which provision such fees were awardable.…

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