JUDITH A. CREEL, APPELLANT,
v.
JOE M. CREEL, APPELLEE
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Former wife appealed denial of modification petition seeking increased child support and extended/increased alimony; former husband cross-appealed seeking decreased child support. The appellate court upheld the trial court's denial of modification requests but reversed the denial of attorney's fees to the wife, finding the husband's reduction petition substantially nonmeritorious.
The trial court properly exercised discretion in denying the modification petitions, but abused its discretion by denying the wife's attorney's fees. The wife is entitled to attorney's fees for defending against the husband's cross-petition and cross-appeal because the husband's petition was substantially nonmeritorious and the parties' financial positions support such an award.
[1] A trial court's denial of petitions for modification of child support and alimony is within its discretion when supported by evidence.
[2] A trial court abuses its discretion by denying a former spouse's request for attorney's fees incurred in defending against a substantially nonmeritorious petition to redu…
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Join FLexlaw to unlock all legal intelligence“We find that the denial of the petitions for modification was well within the trial court's discretion. However, we view the denial of the wife's request for attorney's fees in defense of the husband's petition for reduction of child support to be an abuse of discretion.”
Establishes the court's two-part holding: modification denials upheld but attorney's fees denial reversed as abuse of discretion.
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Join FLexlaw to unlock all legal intelligenceTwo years after dissolution of marriage, the former wife filed a modification petition seeking increased child support, extension of rehabilitative al…
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PER CURIAM.
Two years subsequent to the parties’ dissolution of marriage, the former wife filed a petition for modification seeking: (1) increased child support; (2) an extension of rehabilitative alimony; and (3) an increase in the amount of rehabilitative alimony payments. The former husband filed a cross-petition seeking to decrease the amount of child support. After a full evidentiary hearing, the trial court denied both parties’ petitions as well as the wife’s request for attorney’s fees. The wife appeals and the husband cross-appeals, each seeking to vindicate their respective positions before the trial court.
We find that the denial of the petitions for modification was well within the trial court’s discretion. However, we view the denial of the wife’s request for attorney’s fees in defense of the husband’s petition for reduction of child support to be an abuse of discretion. The income, assets, and relative financial positions of the parties, Canakaris, v. Canakaris, 382 So. 2d 1197 (Fla.1980); Hicks v. Hicks, 313 So. 2d 64 (Fla.4th DCA 1975), as well as the husband’s substantially nonmeritorious petition for reduction in child support, Jaffee v. Jaffee, 394 So. 2d 443, 447 (Fla.3d DCA 1981), require that the husband be responsible for paying the wife’s attorney’s fees. For the same reason, we find that the wife is also entitled to her attorney’s fees before this court in defending against the husband’s cross-appeal.
Consequently, we remand the case to the trial court to fix and determine reasonable fees to be awarded the wife for the services of her counsel in defending against the husband’s cross-petition and cross-appeal.
Affirmed in part and reversed in part with directions.
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Meloan v. Coverdale, 525 So. 2d 935 (Fla. 3d DCA 1988)…ment property settlement agreement); Planes v. Planes, All So. 2d 42 (Fla. 3d DCA 1985) (former wife entitled to award of attorney’s fees incurred in enforcing agreement where former husband was in continuous violation of agreement); Creel v. Creel, 423 So. 2d 419 (Fla. 3d DCA 1982) (court considered former husband’s substantially non-meritorious petition for reduction in child support, as well as income, assets, and relative financial positions of parties, to find former wife entitled to attorney’s fees); Br…
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Thornton v. Byrnes, 537 So. 2d 1088 (Fla. 3d DCA 1989)…th and whether the actions of one party compelled the other party to resort to the courts for a remedy.” Id. at 937. See also Dubreuil v. Dubreuil, 489 So. 2d 97 (Fla. 3d DCA 1986); Planes v. Planes, 477 So. 2d 42 (Fla. 3d DCA 1985); Creel v. Creel, 423 So. 2d 419 (Fla. 3d DCA 1982); Broudy v. Broudy, 423 So. 2d 504 (Fla. 3d DCA 1982). There is little indication in the record that the master based his recommendation on anything other than the relative financial positions of the mother and father. Further, the…
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Broudy v. Broudy, 423 So. 2d 504 (Fla. 3d DCA 1982)…hat the wife had sufficient means to obtain able counsel of her own choosing. Nonetheless, the general rule, operating as it does within courts of equity, must be flexible enough to permit consideration of other relevant factors. Cf. Creel v. Creel, 423 So. 2d 419 (Fla. 3d DCA 1982) (relative financial positions of parties as well as the husband’s substantially nonmeri-torious petition for reduction in child support entitled wife to attorney’s fees); Patterson v. Patterson, supra, (when it is necessary for on…
Previewing 3 of 5 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)
- Jaffee v. Jaffee, 394 So. 2d 443 (Fla. 3d DCA 1981)
- Hicks v. Hicks, 313 So. 2d 64 (Fla. 4th DCA 1975)