WARREN D. STOWELL, APPELLANT,
v.
KATHRYN M. STOWELL, APPELLEE

Fla. 4th DCA | 1992-09-23
No. 92-0633
DELL, POLEN and GARRETT, JJ., concur.
604 So. 2d 940 Florida District Court of Appeal, Fourth District (1992) Positive Treatment
Cited by 6 cases

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Synopsis

In this divorce case, the husband appealed the trial court's award of temporary attorney's fees to the wife. The appellate court affirmed, holding that the trial court properly exercised its discretion under Florida law by finding the wife had a need for attorney's fees and the husband had the ability to pay.


Holding

The trial court did not abuse its discretion. The proper inquiry under Florida law is whether one spouse has a need for suit money and the other has the ability to pay—not whether one spouse is completely unable to pay. The competent, substantial evidence supported the trial court's findings under the Canakaris standard.


Headnotes

[1] A trial court has discretion to award temporary attorney's fees in a dissolution of marriage proceeding to ensure both parties have a similar ability to secure competent…

[2] A spouse's need for suit money and the other spouse's ability to pay are the proper inquiries for awarding temporary attorney's fees in a dissolution of marriage case.

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Key Quotes

“The purpose of section 61.16, Florida Statutes, is to ensure that both parties will have a similar ability to secure competent legal counsel.”

Establishes the statutory purpose underlying attorney's fees awards in family law proceedings

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Facts & Procedural History

The wife, earning $657.98 gross monthly income as a paraprofessional, petitioned for dissolution of marriage and requested alimony, child support, and…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Kathryn M. Stowell petitioned for dissolution of her marriage to Warren D. Sto-well, and requested an award of reasonable alimony, child support, attorney’s fees (temporary and permanent) and court costs. After the temporary support hearing, the trial court ordered the husband to pay $14,058.49 in temporary attorney’s fees, of which $1,350 would go directly to the wife, and ordered payment of all other arrearages, including a past due mortgage payment. The court also directed the husband to make child support and temporary alimony payments in the sum of $5,765 per month. The husband appeals only the award of temporary attorney’s fees. We affirm.

The wife graduated from a two year university in 1972, but has not received a degree. She is employed as a paraprofessional at an elementary school. At the time she petitioned for divorce, her gross monthly income was $657.98 (net $569.02). She took a second job, sold her fur coat, gold necklace and gold bracelet to increase her income.

In contrast, the husband’s gross monthly income from previous employment was $13,750 per month. He is currently the president and C.E.O. of a health maintenance organization and grosses $130,000 per year ($10,833 gross income per month). The husband testified that he has deductions for taxes and FICA of $4,000 a month and that after paying the court-ordered support, his net monthly income is $1,030 before his personal expenses. He also testified that he has been running a net shortfall of $3,500 to $4,000 per month and that he has no individual funds, bank accounts, stocks, bonds, securities or debentures that could be liquidated into cash. Nevertheless, at one point during the dissolution proceedings, for a period of two and a half months, the husband collected paychecks from both his previous and current employers, giving him a gross yearly income of $295,000. The husband also owns jewelry which he claims is worth $6,500 if sold, as well as a 1991 Corvette on which he owes $38,584 and pays $728.00 monthly. He has access to his girlfriend’s 1987 Mercedes Benz and 1990/92 pickup truck. In contrast, the wife drives a 1983 Honda Accord which is paid for. The wife resides in the marital home, which the parties are attempting to sell. The husband testified that he had not signed a listing agreement to sell the house because it would sell for less than he owes on the mortgage. He currently lives with his girlfriend and pays the entire rent of $850.00 per month on their three bedroom apartment.

The husband claimed that he borrowed $30,000 from his girlfriend to pay his first attorney and paid his second attorney $15,-000. The wife, on the other hand, paid her attorney $8,700, $5,000 of which came from a joint money market savings account. Over the past few months the wife has only been able to pay her attorney $200 due to lack of funds.

The husband argues that the trial court abused its discretion when it awarded temporary attorney’s fees to the wife. He claims that the evidence adduced below clearly demonstrates that he lacks the ability to pay, notwithstanding the wife’s need for the fees. He also asserts that the wife obviously did not lack resources to obtain comparable legal representation.

The purpose of section 61.16, Florida Statutes, is to ensure that both parties will have a similar ability to secure competent legal counsel. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). It is not necessary that one spouse be completely unable to pay attorney’s fees in order for the trial court to require the other spouse to pay attorney’s fees. Id. at 1205. The proper inquiry is whether one spouse has a need for suit money and the other has the ability to pay. Robbie v. Robbie, 591 So. 2d 1006, 1009 (Fla. 4th DCA 1991). We find competent, substantial evidence to support the trial court’s findings and hold that under the Cctnakaris standard, the trial court did not abuse its discretion. Accordingly, we affirm.

DELL, POLEN and GARRETT, JJ., concur.


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Citator

Cited By

  • Brock v. Newman Brock, 690 So. 2d 737 (Fla. 5th DCA 1997)
    …2d 494 (Fla. 4th DCA 1978), cert. denied, 368 So. 2d 1370 (Fla. 1979). . Reich v. Reich, 652 So. 2d 1200 (Fla. 4th DCA 1995); Kovar v. Kovar, 648 So. 2d 177 (Fla. 4th DCA 1994); Gomez v. Gomez, 642 So. 2d 107 (Fla. 3d DCA 1994); Stowell v. Stowell, 604 So. 2d 940 (Fla. 4th DCA 1992); Green v. Green, 542 So. 2d 466 (Fla. 5th DCA 1989); Benson v. Benson, 519 So. 2d 1098 (Fla. 3d DCA 1988); Carroll v. Carroll, 471 So. 2d 1358 (Fla. 3d DCA), rev. denied, 482 So. 2d 347 (Fla.1985); McIntyre v. McIntyre, 434 So. 2…
  • Freid v. Freid, 717 So. 2d 145 (Fla. 5th DCA 1998)
    …. The inquiry made by the lower court and the standard applied are exactly the same in either situation. Nichols. The purpose of an attorney fee award is to ensure that both parties have similar ability to seek competent counsel. Stowell v. Stowell, 604 So. 2d 940 (Fla. 4th DCA 1992). The parties should be put on nearly equal footing to pay for adequate legal representation and costs. Nichols; Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). The only standard for making such an award in a dissolution of m…
  • Rubelman v. Rubelman, 642 So. 2d 607 (Fla. 3d DCA 1994)
    …PER CURIAM. Affirmed. Stowell v. Stowell, 604 So. 2d 940 (Fla. 4th DCA 1992); Mettler v. Mettler, 569 So. 2d 496 (Fla. 4th DCA 1990); Thornton v. Byrnes, 587 So. 2d 1088 (Fla. 3d DCA 1989); Bloom v. Bloom, 414 So. 2d 1153 (Fla. 3d DCA 1982).…

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