ROGER FRANCIS DYKES, JR., APPELLANT/CROSS-APPELLEE,
v.
DIANA CHRISTINE DYKES, APPELLEE/CROSS-APPELLANT

Fla. 5th DCA | 1985-08-22
No. 84-149
THOMPSON, E.R., Jr., Associate Judge, concurs., DAUKSCH, J., dissents with opinion.
475 So. 2d 1261 Florida District Court of Appeal, Fifth District (1985) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In this family law appeal, the trial court awarded the former wife $30,000 in appellate attorney's fees based on the former husband's superior ability to pay, demonstrated by a $267,000 fund from his grandfather. The appellate court affirmed the trial court's finding regarding the fund's ownership and the economic disparity between parties, but reduced the fee award to $26,260 because the hours claimed by counsel were unreasonable and excessive.


Holding

The trial court correctly found that the $267,000 fund was the former husband's asset and that an economic disparity between the parties justified an attorney's fee award. However, the trial court abused its discretion in awarding $30,000 because the hours claimed by counsel were unreasonable and excessive. The maximum reasonable fee for appeal preparation was $16,660 and for the fee hearing was $9,600, reducing the total allowable fee to $26,260.


Headnotes

[1] An award of attorney's fees on appeal is governed by the concept of comparative abilities to secure counsel, rather than on a party's victory.

[2] A trial court's finding that a fund gifted to a party by a relative is that party's asset is supported by substantial evidence.

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Key Quotes

“an award of attorney's fees on appeal is governed by the "concept of comparative abilities to secure counsel rather than on a party's victory."”

Establishes the legal standard for awarding attorney's fees on appeal in family law cases—based on relative financial ability, not success on the merits.

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Facts & Procedural History

Roger and Diana Dykes were divorcing parties involved in a complex custody dispute governed by Florida's Uniform Child Custody Jurisdiction Act. The t…

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Opinion of the Court
SHARP, Judge.

SHARP, Judge.

The history of this case is lengthy and complex. Dykes v. Dykes, 395 So. 2d 188 (Fla. 5th DCA), rev. denied, 402 So. 2d 609 (Fla.1981). The custody aspects were more difficult than the usual case, as the proceeding involved the application of the then newly adopted Florida’s Uniform Child Custody Jurisdiction Act. §§ 61.1302-1348, Fla.Stat. (1983). Although we denied the former wife the relief requested, we granted her motion for attorney’s fees on appeal, and remanded this issue for the trial court’s determination. The trial court awarded the former wife a $30,000.00 appellate fee, which is the subject matter of this appeal.

The hearing on the fee question for appellate legal services encompassed an incredible five days, and totalled sixteen volumes of recorded testimony. The trial court, inter alia, found that a fund established by the former husband’s grandfather, which totalled $267,000.00, was an asset which belonged to the husband, and thus held that he had a superior ability to pay a reasonable attorney’s fee for legal services for the former wife.

We affirm the trial court’s finding that the substantial fund given to him by his grandfather was the former husband’s asset as there was substantial evidence supporting that determination. Strawgate v. Turner, 339 So. 2d 1112 (Fla.1976); Crooks v. Atlantic National Bank, 445 So. 2d 1042 (Fla. 5th DCA 1984). It is well settled that an award of attorney’s fees on appeal is governed by the “concept of comparative abilities to secure counsel rather than on a party’s victory.” Thornton v. Thornton, 433 So. 2d 682, 684 (Fla. 5th DCA), rev. denied, 443 So. 2d 980 (Fla.1983). Therefore, the trial court correctly found that there was an economic disparity between the parties. However, it is the amount of the legal fee awarded that gives us pause.

In the instant case, the former wife retained local and out-of-state counsel. Her Florida attorney testified he spent only 11.45 hours working on the appeal process. Most of his efforts, 108.25 hours, were directed towards discovering the former husband’s assets, and proving the ownership of the fund in question. The out-of-state law firm established through computer records that it spent 332 hours on preparation of the appeal and 613 hours on the attorney’s fee hearing. The trial court found, and we agree, that such amounts of time spent were unreasonable and oppressive. With regard to the appeal process, the court found that 240 hours “should have been sufficient time spent for the appeal.” The appellate attorney who represented the former husband testified she spent 66V2 hours on his appeal. Obviously, the representation of an appellant in such a case is more difficult, but it should not be five times more difficult.

Calvin Jenkins, an attorney for the out-of-state law firm, estimated that the total time for preparation and argument for his firm was 184.43 hours. We think the law firm should be bound by those figures. Allowing approximately 11 hours for local counsel’s time and effort, the total of reasonable hours should not have exceeded 196 hours. The trial court found that the hourly rates charged by lawyers in Bre-vard County in 1979-1980 were between $60.00 and $85.00 per hour. Therefore, the award for the preparation for this appeal should have been $16,660.00.

With regard to the attorney’s fee hearing, the trial court found that such a hearing should only reasonably have encompassed two days and that part of the reason for the delay was attributable to the former wife’s out-of-state counsel’s lack of familiarity with Florida trial procedure. It also found that there was no basis for requiring the former husband to pay for multiple representation in this proceeding. Accordingly, it only awarded a total of $9,600.00,1 for the preparation and conduct of this hearing.

Based on this award, calculated at the rate of $100.00 per hour,2 and interpolating backwards, the trial judge found that only 96 hours out of the 613 hours estimated for this proceeding were reasonable. We think the trial court in making this award properly considered the elements necessary to determine an award of attorney’s fees. Pfohl v. Pfohl, 345 So. 2d 371, 379 (Fla. 3rd DCA 1977), Fla. Bar Code Prof. Resp. D.R. 2-106; 26 Fla.Jur.2d Family Law § 730 (1981); see Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985).

In this case we think the award of $9,600.00 for the attorney’s fee hearing is well within the trial court’s discretion and should be sustained. Peak v. Peak, 411 So. 2d 325 (Fla. 5th DCA 1982); Fla.Jur.2d supra at § 657. However, an award of attorney’s fees in a dissolution case, as well as any others, should only be allowed for services that are shown to have been reasonably incurred. Travieso v. Travieso, 447 So. 2d 940 (Fla. 3rd DCA 1984); Donner v. Donner, 281 So. 2d 399 (Fla. 3rd DCA), cert. denied, 287 So. 2d 679 (Fla.1973). Accordingly, the maximum appellate fee allowable should not have exceeded $16,660.00. Therefore, we reduce the total amount awarded from $30,000.00 to $26,-260.00.

AFFIRMED AS MODIFIED.

THOMPSON, E.R., Jr., Associate Judge, concurs.

DAUKSCH, J., dissents with opinion.

. This amount is arrived at by subtracting the trial court’s award of |20,400.00 for appeal preparation from the total sum ($30,000.00) awarded for fees in this case.

. There was adequate testimony to support the $100.00 rate.

Dissent
DAUKSCH, Judge,

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

I note the majority opinion’s characterization of the length of the hearing on attorney’s fees as being “incredible.” It was five days long, so nothing to be disbelieved there; what I find to be incredible is the evidence adduced at the hearing. To me a $30,000.00 fee in this case is excessive, not supported by the record and is obviously based upon a lawyer’s inflated value of his own worth. I am virtually certain the number of hours spent were not necessary and that the number of hours testified to were not spent. I would either reverse the fee award and send it back for a rehearing in the light of the Florida Patients Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985) decision or reduce the amount, here, to a reasonable one.


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Citator

Cited By

  • Oldham v. Oldham, 683 So. 2d 579 (Fla. 4th DCA 1996)
    …ivil cases, fee awards in domestic eases do not turn on prevailing party status but are governed by the comparative abilities of the parties to secure competent legal counsel. See, Davis v. Davis, 584 So. 2d 1117 (Fla. 1st DCA 1991); Dykes v. Dykes, 475 So. 2d 1261 (Fla. 5th DCA 1985). Where one party has a greatly superior income producing ability and assets, an award of attorney’s fees to the less financially secure spouse is appropriate. E.g., Kuczwanski v. Kuczwanski, 602 So. 2d 623, 624 (Fla. [4th DCA] 19…

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