DORIS N. GOLDMAN F/K/A DORIS N. SMARGON, APPELLANT,
v.
SAMUEL J. SMARGON, APPELLEE
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The appellate court reversed post-dissolution orders, holding that the trial judge erred in overruling the master's recommendation that the husband continue paying the second mortgage and in failing to award the wife attorney's fees for defending against the husband's repetitive modification attempts.
A trial court abuses its discretion by overruling a master's recommendation supported by competent evidence without a finding of clear error, and must award attorney's fees to a spouse defending against baseless attempts to modify an existing judgment.
[1] A trial court abuses its discretion by overruling a general master's recommendation that is supported by competent evidence and not clearly erroneous.
[2] Attorney's fees must be awarded to a spouse who incurs necessary defense costs against the other spouse's repetitive and unsuccessful attempts to modify or amend a final…
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Join FLexlaw to unlock all legal intelligence“a party should be awarded fees required by the opponent's baseless attempts to alter an existing judgment to his advantage”
Court explaining the basis for awarding attorney's fees in post-judgment modification disputes
In a post-dissolution proceeding, the husband sought to modify the final judgment regarding payment of the second mortgage on the marital home and att…
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SCHWARTZ, Chief Judge.
We find error in both of the post-dissolution orders submitted for review.
1. There is no basis for the trial judge’s overruling the finding and recommendation of the general master that the husband continue to pay the amount of the second mortgage on the parties’ home, as provided in the final judgment. The trial court itself, upon review of the master’s report, stated that this issue was a “very close” one. This conclusion alone shows that the master’s determination was supported by competent evidence and was surely not “clearly erroneous,” as is required to justify a departure from his decision. Bragassa v. Bragassa, 505 So. 2d 556 (Fla. 3d DCA 1987); Reichman v. Reichman, 450 So. 2d 1188 (Fla. 3d DCA), pet. for review denied, 459 So. 2d 1041 (Fla.1984); Matos v. Matos, 421 So. 2d 180 (Fla. 2d DCA 1982).
2. The lower court also erred in failing to award the wife attorney’s fees for the necessary defense of the husband’s repetitive, unsuccessful attempts to modify or amend the terms of the final judgment. Quite apart from the disparity in income which favored the husband, we have consistently held that a party should be awarded fees required by the opponent’s baseless attempts to alter an existing judgment to his advantage. Creel v. Creel, 423 So. 2d 419 (Fla. 3d DCA 1982); Broudy v. Broudy, 423 So. 2d 504 (Fla. 3d DCA 1982); Jaffee v. Jaffee, 394 So. 2d 443 (Fla. 3d DCA 1981). After remand, the trial judge shall assess a reasonable fee accordingly.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Elenewski v. Roslyn Elenewski, 528 So. 2d 1354 (Fla. 3d DCA 1988)…es may be assessed on that ground against a party who baselessly brings an action for modification, and thus causes the unnecessaryexpenditure of fees by the other side, see Meloan v. Coverdale, 525 So. 2d 935 (Fla. 3d DCA 1988); Goldman v. Smargon, 524 So. 2d 479 (FLa. 3d DCA 1988); Jaffee v. Jaffee, 394 So. 2d 443 (Fla. 3d DCA 1981), such an award is limited, as in the usual domestic situation, by that party’s financial ability to respond. Meloan, 525 So. 2d at 936-37. See generally Travieso v. Travieso, 44…
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Lamb v. Lamb, 533 So. 2d 857 (Fla. 4th DCA 1988)…findings are supported by competent evidence and are not clearly erroneous, the trial court’s orders adopting the master’s recommendations concerning the primary physical residence of the parties’ minor children must be affirmed. Goldman v. Smargon, 524 So. 2d 479 (Fla. 3d DCA 1988); Bragassa v. Bragassa, 505 So. 2d 556 (Fla. 3d DCA 1987). We likewise affirm on the issue of attorney’s fees. The record fully supports the master’s findings that the wife should be awarded a portion of her attorney’s fees. Durin…
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Eisner v. Markovich, 585 So. 2d 312 (Fla. 3d DCA 1991)…s for a remedy.” Meloan v. Coverdale, 525 So. 2d 935 (Fla. 3d DCA), review denied, 536 So. 2d 243 (Fla.1988); Thornton v. Byrnes, 537 So. 2d 1088 (Fla. 3d DCA 1989); see Elenewski v. Elenewski, 528 So. 2d 1354 (Fla. 3d DCA 1988); Goldman v. Smargon, 524 So. 2d 479 (Fla. 3d DCA 1988). Here, there is no contention that the former wife’s modification petition was without merit or litigated in bad faith. “Once a trial court decides to appoint a master to hear testimony and make findings of fact, it loses the prer…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jaffee v. Jaffee, 394 So. 2d 443 (Fla. 3d DCA 1981)
- Bragassa v. Bragassa, 505 So. 2d 556 (Fla. 3d DCA 1987)
- Matos v. Otsenre E. Matos, 421 So. 2d 180 (Fla. 2d DCA 1982)
- Broudy v. Broudy, 423 So. 2d 504 (Fla. 3d DCA 1982)
- Creel v. Creel, 423 So. 2d 419 (Fla. 3d DCA 1982)
- Reichman v. Reichman, 450 So. 2d 1188 (Fla. 3d DCA 1984)