JANE D. DEAKYNE, APPELLANT,
v.
DEAN J. DEAKYNE, APPELLEE
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Jane Deakyne appealed a divorce judgment, challenging the division of marital property, alimony award, and denial of attorney's fees. The appellate court affirmed the property division and alimony award but reversed the denial of attorney's fees, finding the husband had superior financial ability to pay.
The trial court did not abuse its discretion in dividing the marital property or awarding alimony, but it did abuse its discretion in denying the wife's request for attorney's fees. The court reversed the denial of attorney's fees and remanded for determination of a reasonable award.
[1] A trial court abuses its discretion in denying attorney's fees to a spouse who is unable to afford counsel when the other spouse has a superior ability to pay.
[2] The purpose of statutes permitting attorney's fees in dissolution proceedings is to ensure both parties have an equal opportunity to secure counsel.
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Join FLexlaw to unlock all legal intelligence“It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the evidence. Rather, the test is whether the judgment of the trial court is supported by competent evidence.”
Establishes the standard of review for abuse of discretion claims in family law appeals.
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Join FLexlaw to unlock all legal intelligenceJane and Dean Deakyne divorced. Evidence showed Jane was unable to work outside the home, while Dean's earnings were insufficient to meet both parties…
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ORFINGER, Judge.
The wife appeals from a judgment dissolving the marriage between the parties. She contends that the trial court abused its discretion in the division of the marital property, in awarding her too little for alimony, and in denying her request for an award of attorney’s fees. We affirm in part and reverse in part.
The standard of review is whether the trial court abused its discretion. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the evidence. Rather, the test is whether the judgment of the trial court is supported by competent evidence. Kuvin v. Kuvin, 442 So. 2d 203 (Fla.1983).
Although there is evidence to support the wife’s contention that she is unable to work outside the home, there is also evidence that the. husband’s earnings are insufficient to meet the needs of the parties. The trial court made the specific finding that This is another of those cases in which there is insufficient means to meet the needs of the parties and to accomplish what this court believes to be just and equitable under the existing circumstances.
The evidence supports that conclusion. We therefore find no basis for disturbing the alimony award. Similarly, the record reflects a reasonably equitable division of the marital property, and based on the test espoused in Canakaris, we cannot say that there was an abuse of discretion in making such division.
We do find, however, that the trial court abused its discretion in denying the wife any award for attorney’s fees. In Peak v. Peak, 411 So. 2d 325 (Fla. 5th DCA 1982) this court held that when one spouse is in a position to pay attorney’s fees for a spouse who is unable to afford counsel, the court should award the needing spouse such fees. In the instant case the wife has no income or earning ability, and no assets sufficient to pay fees. By contrast, the appellee does earn a regular income from his own business. It is clear that the wife’s present ability to pay for her attorney’s services is inferior to her husband’s.
In Patterson v. Patterson, 399 So. 2d 73 (Fla. 5th DCA 1981) this court stated that the purpose of Florida Statute § 61.16, permitting the trial court to award attorney’s fees in a dissolution proceeding, is to ensure that both parties will have the same opportunity to secure counsel. Where one party has a superior financial ability to secure counsel, it is not necessary that the other spouse be completely unable to pay attorney’s fees. See, Cummings v. Cummings, 330 So. 2d 134 (Fla.1976); Canakaris, 382 So. 2d at 1205.
In the instant case the appellant is not at all on an equal footing with the appellee in terms of her ability to pay her attorney. The record shows that she is completely unable to pay counsel without assistance from her husband. Although the husband’s ability to pay is also limited, the comparative financial position of the parties clearly suggests that the husband is in a superior position to pay some, if not all, of the wife’s fees. We affirm the final judgment in all respects except as to the denial of the wife’s request for an award of attorney’s fees. We reverse that part of the judgment denying attorney’s fees to the wife, and remand the cause to the trial court for a determination of a reasonable award of attorney’s fees to the wife for proceedings in the trial court.
AFFIRMED in part, REVERSED in part, and REMANDED.
FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.
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Citator
Cited By (25 total)
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Nichols v. Nichols, 519 So. 2d 620 (Fla. 1988)…court risks inequity. This conclusion is no less true because the request is for temporary fees. Thus, the appropriate inquiry and standard to be applied is the same whether the fees requested are temporary or final. See, e.g., Deakyne v. Deakyne, 460 So. 2d 582 (Fla. 5th DCA 1984); Hirst v. Hirst, 452 So. 2d 1083 (Fla. 4th DCA 1984); Johns v. Johns, 423 So. 2d 443 (Fla. 4th DCA 1982); Locke v. Locke, 413 So. 2d 431 (Fla. 3d DCA 1982). A determination on any other basis would constitute an abuse of discreti…
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Vitalis v. Lesli Vitalis, 799 So. 2d 1127 (Fla. 5th DCA 2001)…ot the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the evidence. Rather, the test is whether the judgment of the trial court is supported by competent evidence.” Deakyne v. Deakyne, 460 So. 2d 582, 583 (Fla. 5th DCA 1984) (citing Kuvin v. Kuvin, 442 So. 2d 203 (Fla.1983)). The husband argues that the wife is not entitled to an award of rehabilitative and/or permanent alimony because the final judgment failed to contain the express findings o…
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Layeni v. Kehinde A. Layeni, 843 So. 2d 295 (Fla. 5th DCA 2003)…ot the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the evidence. Rather, the test is whether the judgment of the trial court is supported by competent evidence.” Deakyne v. Deakyne, 460 So. 2d 582, 583 (Fla. 5th DCA 1984) (citing Kuvin v. Kuvin, 442 So. 2d 203 (Fla.1983)). We do, however, reach an opposite conclusion regarding the trial court’s denial of rehabilitative alimony to the former wife because we find the trial court misapplied the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Kuvin v. Kuvin, 442 So. 2d 203 (Fla. 1983)
- Cummings v. Cummings, 330 So. 2d 134 (Fla. 1976)
- Peak v. Ewell A. Peak, 411 So. 2d 325 (Fla. 5th DCA 1982)
- Patterson v. Patterson, 399 So. 2d 73 (Fla. 5th DCA 1981)