ANGELINE BACHMAN, APPELLANT,
v.
CHRISTOPHER E. BACHMAN, ET AL., APPELLEES

Fla. 4th DCA | 1990-08-08
No. 89-2695
DOWNEY and WALDEN, JJ., concur.
566 So. 2d 19 Florida District Court of Appeal, Fourth District (1990) Positive Treatment
Cited by 4 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

Angeline Bachman appeals the trial court's denial of her motion for temporary suit money and attorney's fees in a dissolution proceeding. The appellate court reverses, finding the trial court failed to conduct a sufficient hearing on the parties' financial circumstances and mischaracterized the payment status of her attorney's fees.


Holding

Yes. The trial court abused its discretion by failing to conduct a hearing sufficient to fully consider the financial circumstances of both parties before determining attorney's fees. The court's finding that neither party could pay additional fees was unsupported by the record, and the court erroneously found that the attorney had been adequately compensated when the record showed he retained only $400 after expenses.


Headnotes

[1] A trial court must fully consider the financial circumstances of both parties before determining attorney's fees and costs.

[2] A trial court abuses its discretion by failing to conduct a hearing sufficient to determine the financial positions of both parties when considering attorney's fees.

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Key Quotes

“It is well settled that a trial court must consider fully the financial circumstances of both parties before making a determination as to attorney's fees and costs.”

Establishes the required standard for attorney's fee awards in dissolution cases

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Facts & Procedural History

Angeline and Christopher Bachman were married for twenty-two years. The trial court held hearings in April and September 1989 on Angeline's motion for…

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Opinion of the Court
DELL, Judge.

DELL, Judge.

Angeline Bachman appeals from a non-final order denying her motion for temporary suit money and attorney’s fees. She claims that the trial court erred in not awarding her attorney’s fees because her financial position is substantially inferior to appellee’s; that the trial court denied her motion without making a proper determination regarding the financial positions of both parties; and that the record does not support the trial court’s finding of fact regarding fees paid to her attorney. We agree and reverse.

The record shows that in April, 1989, the trial court heard testimony from appellant’s expert witnesses regarding appel-lee’s ability to pay and the reasonableness of the attorney’s fees requested by appellant.

However, due to time constraints, the court did not complete the hearing. In September, 1989, the trial court resumed the hearing on appellant’s motion for attor ney s fees, but heard no testimony from either appellant or appellee regarding their financial circumstances, stating that time constraints again precluded the completion of the hearing.

Nevertheless, based on a proffer by each of the parties, the court entered an order denying appellant’s motion for temporary suit money and attorney's fees. It is well settled that a trial court must consider fully the financial circumstances of both parties before making a determination as to attorney’s fees and costs. See Bernstein v. Bernstein, 524 So. 2d 472 (Fla. 4th DCA 1988). Here, we find that the trial court did not conduct a hearing sufficient to make such a determination.

The record does not support the trial court’s conclusion that “neither party has the ability to pay additional fees and costs at the present time without further jeopardizing their fragile and precarious financial status.” The record of the initial hearing shows that appellee’s personal income for the years 1986 through 1988 averaged in excess of $90,000, and for that part of the year 1989 for which records were available, his income was in excess of $50,-000. Appellee-also had a substantial part of his personal expenses paid by his companies. He apparently has also maintained the lavish lifestyle that the parties enjoyed during at least the latter part of their twenty-two year marriage. See Seitz v. Seitz, 471 So. 2d 612 (Fla. 3d DCA 1985).

On the other hand, appellant earned $5.00 per hour and had no other sources of income available to her other than the support furnished by appellee. Where a party’s financial position is substantially inferior in a dissolution proceeding, a trial court’s failure to award attorney’s fees and costs constitutes an abuse of discretion. Davis v. Davis, 547 So. 2d 309 (Fla. 4th DCA 1989).

We also find no support for the trial court’s finding that appellant’s attorney had been compensated. The court apparently did not consider that appellant’s attorney had paid for expert witnesses and reporting services and, of the alleged $7,500.00 he had received from appellee, he was left with approximately $400.00 for his fees. Without establishing, with some degree of certainty, the amount of fees retained by appellant’s attorney after the payment of costs, we question how the court would be able to determine a reasonable attorney’s fee award. As we stated in Barbante v. Barbante, 464 So. 2d 618 (Fla. 4th DCA 1985):

[I]t is incumbent upon that trial court to determine the amount of a reasonable attorneys’ fee using well-established criteria and thereafter, based upon the evidence and applicable law, to determine how much of that fee the other spouse should be required to pay.

Id. at 618.

Accordingly, we reverse the trial court’s order denying appellant’s motion for temporary suit money and attorney’s fees. We remand this cause to the trial court with instructions to conduct such further hearings as may be necessary to consider fully the financial resources of both parties and to award appellant a reasonable sum for temporary suit money and attorney’s fees. See Davis v. Davis, 547 So. 2d 309 (Fla. 4th DCA 1989) and Bernstein v. Bernstein, 524 So. 2d 472 (Fla. 4th DCA 1988). See also § 61.16, Fla.Stat. (1989); Nichols v. Nichols, 519 So. 2d 620 (Fla.1988).

REVERSED and REMANDED.

DOWNEY and WALDEN, JJ., concur.


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Citator

Cited By

  • Moore v. Cezar Trevino, 612 So. 2d 604 (Fla. 4th DCA 1992)
    …inferior to appellee’s. Thus, we hold that the trial court’s failure to award appellant attorney’s fees and costs constitutes an abuse of discretion. See generally, P.A.G. v. A.F., 1992 WL 352968 (Fla. 4th DCA December 2, 1992); Bachman v. Bachman, 566 So. 2d 19 (Fla. 4th DCA 1990); Davis v. Davis, 547 So. 2d 309 (Fla. 4th DCA 1989). Accordingly, we reverse the order on appeal and remand for further proceedings consistent with this opinion. ALDERMAN, JAMES E., Senior Justice, concurs. FARMER, J., dissent…
  • Killingsworth v. Killingsworth, 567 So. 2d 567 (Fla. 5th DCA 1990)
    …es for enforcement of the child support obligations of the husband, is reversed. This award was made without the required hearing or findings that would warrant an award of such a small percentage of the fees incurred. See, e.g., Bachman v. Bachman, 566 So. 2d 19 (Fla. 4th DCA 1990). REVERSED and REMANDED for determination of a reasonable attorney’s fee. COBB, J., concurs. DAUKSCH, J., dissents with opinion.…

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