RICHARD NORMAN SMITH, APPELLANT,
v.
ELLEN MARIE SMITH, APPELLEE
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In this Florida dissolution of marriage case, the husband appealed a final judgment that awarded the wife primary custody, exclusive possession of the home, child support, rehabilitative alimony, and required the husband to pay half of the wife's attorney's fees. The court affirmed most provisions but reversed the attorney's fees award, holding that where marital assets are equitably distributed and both parties have substantially equal earning ability, it is inequitable to require one party to pay the other's attorney's fees.
The court affirmed the judgment's provisions regarding custody, support, and asset distribution, finding no abuse of discretion. However, the court reversed the requirement that the husband pay one-half of the wife's attorney's fees, holding that after equitable distribution of marital assets, it is inequitable to diminish one party's award by requiring payment of the other's attorney's fees when both parties have substantially equal ability to pay such fees.
[1] A trial court may abuse its discretion by requiring one party to pay the other party's attorney's fees when, following an equitable distribution of marital assets, both p…
[2] The purpose of statutes authorizing attorney's fees in dissolution of marriage cases is to ensure that each party has a similar ability to secure competent counsel and li…
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Join FLexlaw to unlock all legal intelligence“The purpose of this statute is to assure that each party has similar ability to secure competent counsel and to litigate the issues presented in the dissolution of marriage.”
Establishes the statutory purpose of attorney's fees awards in dissolution cases.
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Join FLexlaw to unlock all legal intelligenceThe parties' marriage was dissolved, with the wife awarded primary custody of the children and exclusive possession of the marital home until the youn…
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SCHOONOVER, Acting Chief Judge.
Richard Norman Smith (the husband) appeals from a final judgment dissolving his marriage to Ellen Marie Smith (the wife). We affirm in part and reverse in part.
In addition to dissolving the parties’ marriage, the final judgment awarded to the wife primary custody of the children and exclusive possession of the parties’ home until the youngest child attains the age of eighteen. The husband was required to pay, among other things, child support, rehabilitative alimony, one-half of the family’s debts, and one-half of the mortgage payments on the home. We find that the court did not abuse its discretion in this portion of the final judgment, see Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980), but that it did abuse its discretion in requiring the husband to pay one-half of the wife’s attorney’s fees.
Pursuant to section 61.16, Florida Statutes (1985), a court may, after considering the parties’ financial resources, order one party to pay to the other party a reasonable amount for attorney’s fees, suit money, and costs. The purpose of this statute is to assure that each party has similar ability to secure competent counsel and to litigate the issues presented in the dissolution of marriage. Ariko v. Ariko, 475 So. 2d 1352 (Fla. 5th DCA 1985); McIntyre v. McIntyre, 434 So. 2d 61 (Fla. 5th DCA 1983).
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 such fees can in a proper case be awarded to avoid an inequitable diminution of the amounts granted as equitable distribution or support. Canakaris. After making a truly equitable distribution of marital assets, however, it is inequitable to dimmish the asserts awarded to one party by requiring that 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. Ariko; McIntyre. In this case the only asset of substantial value was the parties’ home, ownership of which was equally divided. As use and possession of the home had been awarded to the wife until the youngest child attains the age of eighteen years, the home was not available to be sold to obtain funds for the payment of attorney’s fees. It appears, therefore, that the wife’s indebtedness for attorney’s fees will have to be paid from someone’s future earnings. Because the wife has earning ability equal or superior to that of the husband, she has equal or superior ability to discharge her own debt for attorney’s fees. It was therefore error for the trial court to order the husband to pay one-half of the wife’s attorney’s fees. McIntyre.
We, accordingly, reverse the portion of the final judgment requiring the husband to pay one-half of the wife’s attorney’s fees. We affirm the final judgment in all other respects.
Affirmed in part, reversed in part.
HALL and SANDERLIN, 'JJ., concur.
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Blackburn v. Anne E. Blackburn, 513 So. 2d 1360 (Fla. 2d DCA 1987)…he wife. We find no abuse of discretion by the trial judge and, accordingly, affirm the order. § 61.16, Fla.Stat. (1985); Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); O’Steen v. O’Steen, 478 So. 2d 489 (Fla. 1st DCA 1985). See Smith v. Smith, 495 So. 2d 229 (Fla. 2d DCA 1986). DANAHY, C.J., and FRANK and BOARDMAN, EDWARD F., (Ret.) JJ., concur.…
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Kuse v. Kuse, 533 So. 2d 828 (Fla. 3d DCA 1988)…inancial ability to pay the fees. Bryan v. Bryan, 442 So. 2d 362 (Fla. 1st DCA 1983), review denied, 450 So. 2d 485 (Fla.1984). See also O’Steen v. O’Steen, 478 So. 2d 489 (Fla. 1st DCA 1985); see generally § 61.16, Fla.Stat. (1987); Smith v. Smith, 495 So. 2d 229 (Fla. 2d DCA 1986). We find that the trial court erred in failing to award attorney’s fees to the appellant. The husband’s longtime record of income production and his earning ability were substantially superior to those of the wife. See Blackburn…
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Haas v. Haas, 552 So. 2d 221 (Fla. 2d DCA 1989)…failure to pay certain financial obligations under the final judgment. Since this decision reverses the final judgment upon which the order of contempt is based, that order must also be vacated by the trial court upon remand. . See Smith v. Smith, 495 So. 2d 229 (Fla. 2d DCA 1986).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- McINTYRE v. McINTYRE, 434 So. 2d 61 (Fla. 5th DCA 1983)
- Ariko v. Ariko, 475 So. 2d 1352 (Fla. 5th DCA 1985)