EDWARD H. ROBINSON, APPELLANT,
v.
ROBERT E. HUCKER, APPELLEE
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In a dissolution of marriage case, the trial court awarded attorney's fees to the wife's counsel against the husband's will, even though the parties had reconciled and stipulated to dismissal. The First District Court of Appeal reversed, holding that only a party to a marriage dissolution action may seek attorney's fees under Florida Statute § 61.16, and that the husband cannot be ordered to pay fees when the wife is financially capable and has not sought such an award.
Only a party to a marriage dissolution action may apply for an award of attorney's fees under § 61.16. The husband was entitled to challenge the portion of the award requiring him to pay $2,000 of the $3,500 fee, particularly where the wife demonstrated financial capacity to pay her own fees and did not seek the award.
[1] Only a party to a marriage dissolution action may apply for an award of attorney's fees under § 61.16, Florida Statutes.
[2] An attorney may defend or enforce an award of attorney's fees ordered in their own name.
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Establishes the fundamental principle that attorney's fee awards under § 61.16 require party petition, not attorney initiation
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Join FLexlaw to unlock all legal intelligenceHusband and wife petitioned for dissolution of marriage. After a continuance exceeding one year, the parties reconciled and stipulated to dismissal. F…
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WENTWORTH, Judge.
Appellant husband petitioned, and wife counter-petitioned, for a dissolution of marriage. After a continuance of more than one year, husband and wife reconciled and stipulated to a dismissal of their petitions. Five days prior to the filing of the stipulated dismissal, the appellee Hucker, wife’s counsel, without the consent of his client and on his own behalf, filed a motion for attorney’s fees to be paid by the husband, or by the wife, or both. Without considering the stipulated dismissal, the trial court entered an order setting a hearing on the motion for attorney’s fees. After hearing the trial court entered an order awarding the wife’s attorney a fee of $3,500, $2,000 of which was to be paid by the husband. The order also denied the husband’s motions for a continuance, to quash, and for a summary judgment of dismissal. The husband, alone, appeals the award on the grounds (1) that only a party is authorized to seek attorney’s fees under § 61.16, Florida Statutes (1981), and (2) that the trial court erred in ordering the husband to pay $2,000 when the wife was capable of paying her own fee and had not sought such an order. We reverse in part, confining our review to matters ad versely affecting and therefore appealable by the husband.1
We note first that the appellee, wife’s attorney, is properly before this court under the provisions of § 61.16, Florida Statutes (1981), which permits an attorney to defend or enforce an award ordered in his own name. See Baucom v. Baucom, 397 So. 2d 345 (Fla. 3d DCA 1981).
Section 61.16, Florida Statutes (1981), construed in Baucom, “contemplates that only a party to a marriage dissolution action may apply for such an award of attorney’s fees.” Id. at 341. The record in this case shows, and the parties agree, that the wife did not seek such an award and that she filed an affidavit of solvency averring that she had ample funds and ample assets to pay a reasonable attorney’s fee, but that her attorney had never submitted a bill for his services detailing the time spent on her case. We therefore conclude that appellant is entitled by this appeal to challenge the award against him and, for the reasons stated in Baucom’s application of the cited statute, we reverse and remand with directions to amend the order by deleting that portion ordering the husband to pay $2,000 of the $3,500 fee.
REVERSED and REMANDED with directions.
LARRY G. SMITH and JOANOS, JJ., concur. . See Cassel v. Gulf Life Insurance Co., 143 So. 2d 510, at 515 (2d DCA 1962), quoting Day v. Norman, 42 So. 2d 273 (Fla.1949):
No appeal has been taken by any other of the several defendants. Consequently, we should not and do not consider the position taken in the court below by any of them, nor can this appellant assert their rights to a reversal if any exist, (e.s.)
See also Lynn v. City of Ft. Lauderdale, 81 So. 2d 511, 513 (Fla.1955), and 3 Fla.Jur.2d, Appellate Review, § 283.
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Citator
Cited By
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MacLEOD v. Hoff, 654 So. 2d 1250 (Fla. 2d DCA 1995)…on for fees in this instance was filed. Thus, remand is necessary. On remand, the parties are reminded that under section 61.16, Florida Statutes (1993), attorneys have no standing to apply for awards of fees in their own names. Robinson v. Hucker, 423 So. 2d 477 (Fla. 1st DCA 1982); Baucom v. Baucom, 397 So. 2d 345 (Fla. 3d DCA 1981). Instead, section 61.16 provides only that an attorney may enforce, in his own name, an award of fees to a party — made, of course, upon that party’s proper motion — where the…
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Keister v. Keister, 458 So. 2d 32 (Fla. 4th DCA 1984)…nds that the attorney fee award was not authorized under section 61.16, Florida Statutes (1983) because the firm was not the attorney of record for the husband when the fee hearing was held. In support of that position, she cites Robinson v. Hucker, 423 So. 2d 477 (Fla. 1st DCA 1982) and Baucom v. Baucom, 397 So. 2d 345 (Fla. 3d DCA 1981), which hold that [*36] only a party to a dissolution action may apply for an award of attorney’s fees. Those cases do not control here, however, because the husband sought t…
Authorities Cited
- Lynn v. City OF Fort Lauderdale, 81 So. 2d 511 (Fla. 1955)
- Sterling Mirror Co., LLC v. THE Jordon Glass Corp. (Fla. 3d DCA 2022)
- Baucom v. Baucom, 397 So. 2d 345 (Fla. 3d DCA 1981)
- Day v. Norman, 42 So.2d 273 (Fla. 1949)
- Cassel v. Gulf Life Ins. Co., 143 So. 2d 510 (Fla. 2d DCA 1962)