MARINO & GOODMAN, P.A., APPELLANTS,
v.
KIMBERLY CHAPMAN, ET AL., APPELLEES
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The court held that a mother's action seeking custody of a child, even if not explicitly labeled as such, can be considered a paternity proceeding subject to statutory provisions for attorney's fees.
A law firm sought attorney's fees on behalf of a mother who initiated an action to obtain custody of her child. The father filed a counter-petition fo…
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GARRETT, Judge.
The law firm of Marino and Goodman, P.A., seek review of the trial court’s denial of their motion for an award of attorney’s fees.
They sought entry of a permanent injunction and a restraining order on behalf of the mother to obtain custody of her child from appellee Horatio Benedict Blades (Blades). In response, Blades filed a petition for a declaratory judgment of paternity and custody. The trial court declared Blades to be the child’s natural father and awarded him permanent custody. The trial judge denied appellant’s post judgment motion for attorney’s fees and found that “it [was] inappropriate ... for [Blades] to as sume the responsibility for any portion of [the mother’s] attorney’s fees” because her action was not for dissolution of marriage and she was not the prevailing complainant in a paternity case.
As held in Hornsby v. Newman, 444 So. 2d 90, 91 (Fla. 4th DCA 1984), we also hold that the mother’s action “bears the indicia of a Chapter 742 paternity proceeding and, therefore, is subject to its provisions.”
We distinguish Stump v. Foresi, 486 So. 2d 62 (Fla. 4th DCA 1986), where the natural mother only defended against the natural father’s action for declaration of parental rights and duties. Also, we note that since Stump, section 742.031, Florida Statutes (Supp.1988), has been amended to read in part:
If appropriate, the court shall order the father to pay the complainant, her guardian, or any other person assuming responsibility for the child moneys sufficient to pay reasonable attorney fees ...
(emphasis added). As amended, the statute now vests a trial court with discretion to award attorney’s fees.
Accordingly, we reverse and remand for further proceedings so that the trial court can exercise its discretion as to whether attorney's fees should be awarded to the mother. ANSTEAD and GUNTHER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Riccardo YON v. Fleming, 595 So. 2d 573 (Fla. 4th DCA 1992)…attorney’s fees for these appellate proceedings because of the absence of an evidentiary record on which to base an award of fees under section 742.031. See Hornsby v. Newman, 444 So. 2d 90 (Fla. 4th DCA 1984), and Marino & Goodman, P.A. v. Chapman, 561 So. 2d 1318 (Fla. 4th DCA 1990). In all other respects the motions for rehearing and for certification are denied. GLICKSTEIN, C.J., and POLEN and FARMER, JJ., concur.…
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Baumgartner v. Sibylle Baumgartner, 693 So. 2d 84 (Fla. 2d DCA 1997)…divorce proceeding and can be equated with an award of support. They cite cases in which awards have been allowed in annulments, Gilvary v. Gilvary, 648 So. 2d 317 (Fla. 3d DCA 1995), custody and paternity actions, Marino & Goodman, P.A. v. Chapman, 561 So. 2d 1318 (Fla. 4th DCA 1990), Hornsby v. Newman, 444 So. 2d 90 (Fla. 4th DCA 1984), and modifications of child support in paternity disputes, P.A.G. v. A.F., 602 So. 2d 1259 (Fla.1992). We conclude that those eases are distinguishable because the cause of ac…
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Dietrich v. Winters, 798 So. 2d 864 (Fla. 4th DCA 2001)….1980). We also hold that the trial court did not abuse its discretion when it awarded attorney’s fees to appellee. The parties were not married and this was in the nature of a paternity/child custody action. See, e.g., Marino & Goodman v. Chapman, 561 So. 2d 1318 (Fla. 4th DCA 1990); Hornsby v. Newman, 444 So. 2d 90 (Fla. 4th DCA 1984). The record supports the trial court’s finding that appellee established her need for attorney’s fees and appellant’s corresponding ability to pay. Appellant’s final point on…
Authorities Cited
- Hornsby v. Newman, 444 So. 2d 90 (Fla. 4th DCA 1984)
- Stump v. Foresi, 486 So. 2d 62 (Fla. 4th DCA 1986)