WILLIAM R. BENEKOS, APPELLANT,
v.
FRANCES BENEKOS, APPELLEE
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In this divorce appeal, the Florida District Court of Appeal affirmed the trial court's awards of alimony and asset distribution but reversed the award of attorney's fees to the wife, holding that where marital assets are equitably distributed and both parties have substantially equal ability to pay, requiring one party to pay the other's litigation costs is an abuse of discretion.
The trial court abused its discretion in awarding attorney's fees to the wife. Where marital assets are truly equitably distributed and both parties have substantially equal ability to pay, requiring one party to pay the other's litigation costs is inequitable and constitutes an abuse of discretion.
[1] A trial court abuses its discretion by requiring one party to pay the other's attorney's fees and costs when both parties have substantially equal ability to pay, especia…
[2] When a trial court makes a truly equitable distribution of marital assets, it is inequitable to diminish that award by requiring one party to pay the litigation costs of…
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Join FLexlaw to unlock all legal intelligence“when the trial court has made a truly equitable distribution of marital assets, it is inequitable to diminish the award by requiring him to pay litigation costs of the wife where both have substantially equal ability to pay.”
Establishes the core legal principle governing attorney's fees awards in divorce cases with equitable asset distribution
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Join FLexlaw to unlock all legal intelligenceWilliam and Frances Benekos divorced. The trial court awarded the wife primary custody of three minor children, the marital home, a pretzel and lotter…
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THREADGILL, Judge.
William R. Benekos (the husband) appeals from a final judgment dissolving his marriage to Frances Benekos (the wife). We affirm in part and reverse in part.
The final judgment of dissolution awarded the wife primary custody of the three minor children. She also received the marital home, the parties’ pretzel and lottery business, an automobile, jewelry, an IRA, household furnishings, and other miscellaneous assets. The husband was awarded the accounting business, an automobile, an IRA and other miscellaneous assets. The husband was ordered to pay child support, permanent periodic alimony, lump sum alimony and the wife’s attorney’s fees and costs. We find no error in the award of alimony to the wife or in the distribution of marital assets, and affirm those provisions of the final judgment. See Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). We conclude, however, that the trial court abused its discretion in requiring the husband to pay the wife’s attorney’s fees and costs.
The husband contends, and we agree, that when the trial court has made a truly equitable distribution of marital assets, it is inequitable to diminish the award by requiring him to pay litigation costs of the wife where both have substantially equal ability to pay. Smith v. Smith, 495 So. 2d 229 (Fla. 2d DCA 1986); McIntyre v. McIntyre, 434 So. 2d 61 (Fla. 5th DCA 1983). Here, the wife received a greater share of the marital assets and, considering her earnings, child support, permanent periodic alimony and lump sum alimony, she has the greater income. Compare Blackburn v. Blackburn, 513 So. 2d 1360 (Fla. 2d DCA 1987) (no abuse of discretion to order husband to pay wife’s attorney’s fees and costs notwithstanding equitable distribution where husband had greater net worth, longtime record of income production, and superior earning ability).
The wife here has substantially the same ability to pay her attorney as did the husband; therefore, the award of attorney’s fees to the wife constitutes an abuse of discretion. Ariko v. Ariko, 475 So. 2d 1352 (Fla. 5th DCA 1985).
We reverse the award of attorneys’ fees and costs to the wife. We affirm the final judgment in all other respects.
Affirmed in part; reversed in part.
SCHOONOVER, A.C.J., and PARKER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Gentile v. Gentile, 565 So. 2d 820 (Fla. 4th DCA 1990)…house. The distribution resulted in the wife receiving a slightly greater share of the assets than the husband. To now compel him to exhaust his assets to meet support obligations makes an equitable distribution inequitable. Cf. Benekos v. Benekos, 557 So. 2d 942 (Fla. 2d DCA 1990). Finally, in Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla.1986), the supreme court held that a pension or similar plan (such as the husband’s thrift plan) [*823] may be considered as a source of marital property subject to eq…
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Pelton v. Pelton, 617 So. 2d 714 (Fla. 1st DCA 1992)…ons are to be determined after the awards have been made and incomes transferred from the payor spouse to the receiving spouse. See Martinez v. Martinez, 573 So. 2d 37, 46-47 (1st DCA 1990), rev. den., 581 So. 2d 1309 (Fla.1991); Benekos v. Benekos, 557 So. 2d 942, 943 (Fla. 2d DCA 1990) (wife’s award of attorney’s fees constituted an abuse of discretion, considering her earnings, child support and alimony, as well as her having received the greater share of marital assets). Thus, prior to a determination of…
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Myron Lee Murray v. Murray, 598 So. 2d 310 (Fla. 2d DCA 1992)…l court has made a truly equitable distribution of marital assets, as it did in this case, it is inequitable to diminish the award by requiring one party to pay the other’s fees where both have substantially equal ability to pay. Benekos v. Benekos, 557 So. 2d 942 (Fla. 2d DCA 1990). We, accordingly, reverse and remand with instructions to remove from the final judgment the requirement that the appellant pay permanent periodic alimony and [*313] attorney’s fees. We affirm the trial court in all other respect…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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)
- Blackburn v. Anne E. Blackburn, 513 So. 2d 1360 (Fla. 2d DCA 1987)
- Smith v. Smith, 495 So. 2d 229 (Fla. 2d DCA 1986)