ROGER MISHOE, APPELLANT,
v.
SANDRA ALLEN MISHOE, APPELLEE
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A former husband appeals an order modifying his child support obligation and awarding attorney's fees to his former wife from the original dissolution proceeding. The court affirmed the child support modification but reversed the attorney's fees award, holding that a trial court cannot indefinitely reserve jurisdiction to determine attorney's fees and that such determination must be based on the parties' relative ability to pay at the time of the proceeding in question.
A trial court cannot reserve jurisdiction indefinitely to award attorney's fees; such a reservation of jurisdiction is a nullity. Attorney's fees must be determined based on the parties' relative ability to obtain counsel at the time of the proceeding in question, and any award must be supported by findings regarding the parties' current relative ability to pay.
[1] A trial court's reservation of jurisdiction to consider attorney's fees in a dissolution proceeding is ineffectual if the court makes a factual finding that a party is no…
[2] The critical inquiry for awarding attorney's fees in domestic cases is the parties' relative ability to obtain counsel at the time of the proceeding in question.
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Join FLexlaw to unlock all legal intelligence“Attorney's fees may be awarded in domestic cases to insure that each party has a similar ability to secure competent legal counsel.”
Establishes the foundational purpose and principle governing attorney's fees awards in domestic relations cases.
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Join FLexlaw to unlock all legal intelligenceMr. and Mrs. Mishoe obtained a final judgment of dissolution of marriage in April 1989. In that judgment, the trial court found that Mr. Mishoe was no…
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PER CURIAM.
The former husband, Mr. Mishoe, appeals an order modifying his child support obligation and assessing certain attorney’s fees against him and in favor of his former wife. As to the child support award, appellant has demonstrated no error. The somewhat unusual attorney’s fee award must, however, be reversed.
In April 1989, Mr. and Mrs. Mishoe obtained a final judgment of dissolution of marriage. In that judgment the trial court addressed the attorney’s fee issue as follows: “The husband is not presently financially able to pay alimony and attorney fees while unemployed. However, the Court reserves jurisdiction to consider such issues following the husband’s re-employment.”
As part of the present modification proceeding Mrs. Mishoe sought an award of attorney’s fees for the dissolution proceeding, based upon the court’s palpable reservation of jurisdiction on that subject. Although the successor circuit judge, upon hearing the modification proceeding, apparently felt bound by the language contained in the final judgment of dissolution to award Mrs. Mishoe an attorney’s fee for the earlier proceeding, we hold that such an award was error. Attorney’s fees may be awarded in domestic cases to . insure that each party has a similar ability to secure competent legal counsel. Canakaris v. Canakaris, 382 So. 2d 1197, 1205 (Fla.1980).
In the instant case, however, the original trial judge made no finding as to Mrs. Mishoe’s ability to pay her own fees. He specifically found that Mr. Mishoe was not financially able to pay attorney’s fees. Having made this factual finding, any attempt to defer consideration of attorney’s fees into the indefinite future was ineffectual. The critical inquiry under § 61.16, Florida Statutes (1989), is the parties’ relative ability to obtain counsel at the time of the proceeding in question. See Canakaris. If a trial court could reserve such a determination until years after the dissolution, it would stand to reason that if a party receiving an award of attorney’s fees greatly improves his or her circumstances in the future, that party could be required to reimburse the payor spouse by the simple means of reserving jurisdiction. We do not believe that such a result is authorized, or even remotely contemplated, by § 61.16. Mr. Mishoe’s failure to appeal the reservation of jurisdiction does not change the result here, since subject matter jurisdiction may not be conferred by stipulation or waiver by the parties and may be raised at anytime. Department of Military Affairs v. Griffin, 530 So. 2d 1029, 1030 (Fla. 1st DCA 1988); Williams v. Starnes, 522 So. 2d 469, 471 (Fla. 2d DCA 1988).
The purported reservation of jurisdiction is a nullity.1
It further appears that the judge in the modification did not consider Mr. and Mrs. Mishoe’s current relative abilities to pay attorney’s fees.
The record indicates that the former wife has, since the dissolution, received a substantial amount of money in the form of a personal injury settlement, and has used a portion of that money to pay her divorce attorney. Although Mr. Mishoe is now employed, the record con tains no evidence, nor does the order appealed from contain a finding, to the effect that the former husband has a greater ability to pay attorney’s fees than does the former wife, at the present time. Admittedly, the trial court may have felt it unnecessary to delve into the issue of present wealth and ability to pay fees, based upon the first judge’s attempt to reserve jurisdiction. We observe, however, that the first judge only attempted to reserve jurisdiction to consider the issue of fees, and nothing in the original final judgment of dissolution mandates an award of attorney's fees to Mrs. Mishoe.
We affirm the child support determination, and reverse the award of attorney’s fees to the former wife.
JOANOS, C.J., and ZEHMER and KAHN, JJ., concur. . This is not a case in which the court determined entitlement to fees and reserved jurisdiction to set the award. Such is clearly proper. Young v. Young, 507 So. 2d 614 (Fla. 2d DCA 1987); Bailey v. Bailey, 392 So. 2d 49, n. 5 (Fla. 3d DCA 1981).
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Citator
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Duchesneau v. Duchesneau, 692 So. 2d 205 (Fla. 5th DCA 1997)…depart the marriage, not at some unspecified future date. See Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980); Boyett v. Boyett, 683 So. 2d 1140 (Fla. 5th DCA 1996); Sizemore v. Sizemore, 487 So. 2d 1080 (Fla. 5th DCA 1986). In Mishoe v. Mishoe, 591 So. 2d 1100 (Fla. 1st DCA 1992), the First District noted that if a trial court could reserve jurisdiction to award attorney’s fees in the indefinite future, the party receiving the award could benefit from the payor-spouse’s improved future financial circumsta…
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Arouza v. Goldin C. Arouza, 670 So. 2d 69 (Fla. 3d DCA 1995)…ey’s fees thus awarded was disproportionate to her ability to pay.”). The court must award an amount based on the party’s ability to pay as demonstrated by the evidence of the party’s present, not speculative future ability to pay. Mishoe v. Mishoe, 591 So. 2d 1100, 1101 (Fla. 1st DCA 1992) (“The critical inquiry under section 61.16 Florida Statutes (1989), is the parties’ relative ability at the time of the proceeding in question.”). Moreover, although the court may permit a party to pay the award in install…
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Minsky v. Minsky, 779 So. 2d 375 (Fla. 2d DCA 2000)…“any attempt to defer consideration of attorney’s fees into the indefinite future was ineffectual,” and that the trial court must consider “the parties’ relative ability to obtain counsel at the time of the proceeding in question.” Mishoe v. Mishoe, 591 So. 2d 1100, 1101 (Fla. 1st DCA 1992). Affirmed in part, reversed in part, and remanded. FULMER, A.C.J., and DAVIS, J., Concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Bailey v. Bailey, 392 So. 2d 49 (Fla. 3d DCA 1981)
- Williams v. The Honorable Hugh E. Starnes, 522 So. 2d 469 (Fla. 2d DCA 1988)
- Junior McPHERSON v. State, 530 So. 2d 1029 (Fla. 4th DCA 1988)
- Young v. Young, 507 So. 2d 614 (Fla. 2d DCA 1987)