GENE MEDINA, APPELLANT,
v.
SHEILA MARGARET MEDINA, APPELLEE
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In a dissolution of marriage case, the trial court reserved jurisdiction to determine attorney's fees and subsequently awarded the husband's personal property to the wife as partial payment without specifying the amount of reasonable fees. The appellate court reversed the property award, holding that the trial court lacked jurisdiction to distribute property beyond determining the reasonable fee amount.
The court reversed the property award because the order was erroneous in two respects: (1) it failed to determine the amount of reasonable attorney's fees as required by statute, and (2) it purported to distribute property beyond the trial court's reserved jurisdiction, which was limited to determining the fee amount only.
[1] Attorney's fees may be awarded only pursuant to a contract, a valid statute, or for services in creating or bringing into court a fund or property.
[2] A court may order a party to pay reasonable attorney's fees in dissolution proceedings after considering the financial resources of both parties.
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Join FLexlaw to unlock all legal intelligence“Attorney's fees may be awarded to a party only under three circumstances: 1) pursuant to a contract; 2) pursuant to a valid statute; and 3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property.”
Establishes the three permissible bases for awarding attorney's fees in Florida law
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Join FLexlaw to unlock all legal intelligenceGene Medina and Sheila Margaret Medina were divorcing. The trial court's final judgment dissolved the marriage and specifically reserved jurisdiction …
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ORFINGER, Judge.
In the final judgment dissolving the marriage between the parties, the trial court specifically reserved jurisdiction “for the purpose of determining the amount of Attorneys Fees [sic] to be awarded from the Husband to the Wife.” From a subsequent order awarding certain of the husband’s personal property to the wife as partial payment of attorney’s fees, the husband appeals. We reverse.
Attorney’s fees may be awarded to a party only under three circumstances: 1) pursuant to a contract; 2) pursuant to a valid statute; and 3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property. McElhiney v. Ash Properties, Inc., 411 So. 2d 291 (Fla. 1st DCA 1982). Here, the authority to award attorney’s fees to the wife arises by virtue of § 61.16, Florida Statutes (1983) which provides:
The court may from time to time, after considering the financial resources of both parties, order a party to pay a rea sonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.
The “Order Awarding Attorney’s Fees” makes no determination of a reasonable amount to be awarded as attorney’s fees.1 A paragraph in the proposed order was drawn in such form as would have made this determination, but the paragraph was stricken.
The order appealed from is thus erroneous because it fails to determine the amount of the reasonable attorney’s fee to be awarded the wife. It is also erroneous because it purports to make a further distribution of property between the parties when the court no longer had jurisdiction to do so. The final judgment reserved jurisdiction only to determine the amount of the fee to be awarded.
We therefore reverse the order appealed from insofar as it purports to award the husband’s property to the wife as partial payment of attorney’s fees, and remand the cause to the trial court for further proceedings not inconsistent herewith. We find no merit to appellant’s remaining points, and as to those issues, the order appealed from is affirmed.
AFFIRMED in part, REVERSED in part and REMANDED.
SHARP and COWART, JJ., concur. .The operative portions of the order, in full, are as follows:
1. Deleted.
2. That the wife is awarded and the husband is directed to convey as partial compensation for the above [sic] reasonable attorney’s fees all of his right, title and interest in the following described personal property, including but not limited to the following:
1. His boat including its motor, trailer and other auxiliary equipment or attachments thereto.
2. Husband’s motorcycle.
3. Station wagon.
4. All personal property located at [marital home] .... including but not limited to the husband’s laboratory equipment and all various and sundry tools belonging to the husband.
5. The Court especially reserves jurisdiction regarding issues relating to the wife’s interest in that certain Grand Prix automobile and that certain Corvette automobile both titled in the husband’s name.
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Kirby v. Adkins, 582 So. 2d 1209 (Fla. 5th DCA 1991)…claim failed to create justiciable issues in the original and amended complaints. The order awarding attorney’s fees does not specify the authority for the award, and none of the three circumstances for an award of fees set out in Medina v. Medina, 461 So. 2d 1028 (Fla. 5th DCA 1985), is present in this case, i.e., (1) pursuant to a contract; (2) pursuant to a valid statute; or (3) pursuant to an award for services performed by an attorney in creating or bringing into the court a fund or property. In the ins…
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Broward F. Nolin v. Nolin, 466 So. 2d 14 (Fla. 1st DCA 1985)…remanded with directions to hold an evidentiary hearing on the value of the wife’s claim and to enter judgment thereon. See Nivens v. Nivens, 312 So. 2d 201 (Fla. 2d DCA 1975); Pearce v. Pearce, 363 So. 2d 1146 (Fla. 2d DCA 1978); Medina v. Medina, 461 So. 2d 1028 (Fla. 5th DCA 1985); rule 1.530(a), Fla.R.Civ.P. ERVIN, C.J., and MILLS and ZEHMER, JJ., concur.…
Authorities Cited
- James v. McELHINEY, 411 So. 2d 291 (Fla. 1st DCA 1982)