ROBERT DUANE WALLACE, APPELLANT,
v.
SUSANNE M. WALLACE, APPELLEE
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The Fourth District reversed in part an order granting temporary relief in a dissolution of marriage action, holding that a court cannot award relief not requested in pleadings or supported by evidence, and that attorney's fees awards must comply with established legal standards.
A trial court errs when it awards relief that was neither requested in the pleadings nor supported by evidence at the hearing.
[1] In a dissolution of marriage action, a trial court may not award relief that was neither requested in the pleadings nor supported by evidence presented at the hearing.
[2] An award of attorney's fees in a dissolution of marriage action must rest upon well-settled legal principles and comply with the requirements established in Robbie v. …
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Join FLexlaw to unlock all legal intelligenceIn a dissolution of marriage action, the wife moved for temporary and exclusive use of the marital domicile, alimony, child support, attorney's fees, …
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PER CURIAM.
Robert D. Wallace appeals an order in an action for dissolution of marriage, granting the motion of appellee, Susanne M. Wallace, for temporary and exclusive use and possession of the marital domicile, alimony, child support, attorney’s fees and suit money-
The order granting temporary relief required the husband to “bring the rent and all utility payments on the marital domicile current forthwith.” Such relief is neither requested in the pleadings nor supported by the evidence adduced at the hearing below. Because the wife’s motion did not request the relief awarded, and the wife submitted no evidence on this issue, it was error to award such relief. Gleason v. Gleason, 453 So. 2d 941 (Fla. 4th DCA 1984); see also Cooper v. Cooper, 406 So. 2d 1223 (Fla. 4th DCA 1981).
An award of attorney’s fees in an action for dissolution of marriage must rest upon well-settled legal principles. See Nichols v. Nichols, 519 So. 2d 620 (Fla.1988); Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Georgiton v. Georgiton, 545 So. 2d 421 (Fla. 4th DCA), rev. denied, 554 So. 2d 1168 (Fla.1989). We reverse the award here and remand for reconsideration in light of the requirements of Robbie v. Robbie, 591 So. 2d 1006, 1010 (Fla. 4th DCA 1991) (relying on Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985)).
We affirm the award of undifferentiated temporary alimony and child support and the requirement that the husband provide the wife with functioning transportation forthwith.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
GLICKSTEIN, C.J., and HERSEY, J., concur. POLEN, J., concurs specially with opinion.
POLEN, Judge,
concurring specially.
I agree with everything contained in the majority opinion, save one point. The majority has relied in part on Robbie v. Robbie, 591 So. 2d 1006 (Fla. 4th DCA 1991), in reversing the award of temporary attorney’s fees. As noted in my partial dissent in Robbie, I would not require trial courts to make detailed findings of fact on temporary attorney’s fees awards.
The attorney’s fee award in this case, however, is erroneous for yet another reason. Here the attorney for whom the fee was sought never testified. In the absence of any excusal or reason for the omission of such testimony, I would hold it error to award temporary attorney’s fees in this case, and remand for further proceedings. Cooper v. Cooper, 406 So. 2d 1223 (Fla. 4th DCA 1981). I thus join my colleagues as to the result reached.
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Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So. 3d 865 (Fla. 2d DCA 2011)…the subject of appropriate pleadings.” Mizrahi v. Mizrahi, 867 So. 2d 1211, 1218 (Fla. 3d DCA 2004). Thus, it is error to award relief that is neither requested in the motion at issue nor argued at the hearing on that motion. See Wallace v. Wallace, 605 So. 2d 504, 505 (Fla. 4th DCA 1992); Dep’t of Envtl. Regulation v. Montco Research Prods., Inc., 489 So. 2d 771, 773 (Fla. 5th DCA 1986) (“[A] determination by the trial court on an issue which is neither raised by the pleadings [n]or on which the parties have…
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McDONALD v. McDONALD, 732 So. 2d 505 (Fla. 4th DCA 1999)…such relief. See Moore v. Trevino, 612 So. 2d 604, 606 (Fla. 4th DCA 1992) (the trial court’s award of shared parental responsibility constituted reversible error, where appellee did not pray for custody in his counter petition); Wallace v. Wallace, 605 So. 2d 504, 505 (Fla. 4th DCA 1992) (because the wife’s motion did not request the relief awarded, and she submitted no evidence on the issue, it was error to award such relief); Rhodes v. Wall, 514 So. 2d 437, 438 (Fla. 4th DCA 1987) (reversible error occurre…
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Kasm v. Kasm, 933 So. 2d 48 (Fla. 2d DCA 2006)…., Robbie v. Robbie, 591 So. 2d 1006, 1010-11 (Fla. 4th DCA 1991) (Polen, J., concurring in part and dissenting in part) (trial courts should not be required to make detailed findings of fact on temporary attorneys’ fees awards); Wallace v. Wallace, 605 So. 2d 504, 505 (Fla. 4th DCA 1992) (Polen, J., concurring). At least in a case in which there will be a final award of alimony or a property distribution that could be adjusted in the event that the trial court ultimately decides that the temporary award of f…
Previewing 3 of 8 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)
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Nichols v. Nichols, 519 So. 2d 620 (Fla. 1988)
- Dwyn Daniels Robbie v. Robbie, 591 So. 2d 1006 (Fla. 4th DCA 1991)
- Cooper v. Cooper, 406 So. 2d 1223 (Fla. 4th DCA 1981)
- Gleason v. Gleason, 453 So. 2d 941 (Fla. 4th DCA 1984)
- Georgiton v. Simone B. Georgiton, 545 So. 2d 421 (Fla. 4th DCA 1989)
- Adler v. Rimes, 545 So. 2d 421 (Fla. 4th DCA 1989)