ALAN B. MCINTYRE, APPELLANT,
v.
TERRY ELLIS MCINTYRE, APPELLEE
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In a marital dissolution case, the trial court awarded the wife $1,000 contribution toward her attorney's fees. The husband appealed, and the appellate court reversed, finding that because the parties had substantially equal financial resources and earning capacity, it was inequitable to require one party to pay the litigation costs of the other.
The court held that after making a truly equitable distribution of marital assets, it is inequitable to diminish the assets awarded either party by requiring one party to pay the litigation costs of the other where each party has substantially equal ability to pay their own costs and expenses. The award of attorney's fees should not be ordered when the financial resources of the parties are not materially disproportionate.
[1] A court may order a party to pay attorney's fees in a dissolution proceeding based on the financial resources of both parties.
[2] The purpose of statutes allowing for attorney's fees in dissolution proceedings is to ensure both parties have a similar ability to obtain counsel and litigate issues.
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Join FLexlaw to unlock all legal intelligence“After making a truly equitable distribution of marital assets it is inequitable to diminish the assets awarded either party by requiring one party to pay the litigation costs of the other where each party has substantially equal ability to pay their own costs and expenses.”
States the core principle that attorney's fees should not be awarded when parties have equal financial resources after equitable asset distribution.
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Join FLexlaw to unlock all legal intelligenceThe trial court divided marital assets by stipulation: the husband received a pickup truck, and the wife received household furniture and a $350 tax r…
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COWART, Judge.
This case involves the award of an attorney’s fee to a wife in a dissolution proceeding.
By stipulation the trial court divided the marital assets between the parties with the husband getting the pickup truck and the wife getting the household furniture and a $350 tax refund check. Custody of the two and one-half year old child was awarded to the wife. The husband was ordered to pay $35 per week for child support.
The wife earns a net weekly income of $190; the husband earns a net weekly in come of $132, which, less the $35 per week child support, will become $97 per week.
The husband appeals that portion of the final judgment requiring him to pay $1,000 as a contribution to the wife’s attorney’s fees. We reverse.
Section 61.16, Florida Statutes (1981), provides that the court may, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money and the costs to the other party. The purpose of this statute is to assure each party has similar ability to obtain counsel and litigate the issues presented in the dissolution of marriage. In this case each party has had the services of counsel and the wife owes $1,050 she borrowed to make a partial payment of her attorney’s fees. While it is not necessary for one spouse to be completely unable to pay attorney’s fees in order for the other to be required to pay them and attorney’s fees can in a proper case be awarded “to avoid an inequitable diminuation of the fiscal sums granted” as equitable distribution or support, Canakaris v. Can-akaris, 382 So. 2d 1197, 1205 (Fla.1980), nevertheless, this does not constitute a rule of law that the husband should always be required to pay, or contribute to, the wife’s attorney’s fees. After making a truly equitable distribution of marital assets it is inequitable to diminish the assets awarded either party by requiring one party to pay the litigation costs of the other where each party has substantially equal ability to pay their own costs and expenses. In this case the financial resources of the parties are not materially disproportionate and the wife’s indebtedness for attorney’s fees will, apparently, have to be paid from someone’s future earnings. The wife has earning ability equal, even superior, to that of the husband and, therefore, equal or superior ability to discharge her own debt for her own attorney’s fees. The order for the husband to pay a contribution to the wife’s attorney’s fees is
REVERSED.
DAUKSCH, J., and FOXMAN, Associate Judge, concur.
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Citator
Cited By (26 total)
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Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990)…onsidering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter.... In McIntyre v. McIntyre, 434 So. 2d 61, 62 (Fla. 5th DCA 1983), the court held that after making a truly equitable distribution of marital assets, it is inequitable to diminish the assets awarded to either party by requiring one to pay the other’s litigation costs where each party has su…
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Ariko v. Ariko, 475 So. 2d 1352 (Fla. 5th DCA 1985)…table distribution of the assets, it is an abuse of discretion to require one party to pay the other party’s attorney’s fees where, on the basis of such distribution, each party has substantially equal ability to pay such fees. McIntyre v. McIntyre, 434 So. 2d 61 (Fla. 5th DCA 1983). The wife here had substantially the same ability to pay her attorney as did the husband, so the award of attorney’s fees to the wife is erroneous and is hereby reversed. In all other respects, the final judgment is affirmed.…
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Brock v. Newman Brock, 690 So. 2d 737 (Fla. 5th DCA 1997)…o. 2d 940 (Fla. 4th DCA 1992); Green v. Green, 542 So. 2d 466 (Fla. 5th DCA 1989); Benson v. Benson, 519 So. 2d 1098 (Fla. 3d DCA 1988); Carroll v. Carroll, 471 So. 2d 1358 (Fla. 3d DCA), rev. denied, 482 So. 2d 347 (Fla.1985); McIntyre v. McIntyre, 434 So. 2d 61 (Fla. 5th DCA 1983); DeCenzo v. DeCenzo, 433 So. 2d 1316 (Fla. 3d DCA 1983); . Cooper v. Cooper, 639 So. 2d 153 (Fla. 2d DCA 1994); Dyson v. Dyson, 597 So. 2d 320 (Fla. 1st DCA 1992); Shepard v. Shepard, 584 So. 2d 1123 (Fla. 4h DCA 1991); Moore v.…
Previewing 3 of 26 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)