CATHERINE MARTIN, APPELLANT,
v.
MICHAEL MARTIN, APPELLEE
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Catherine Martin appealed the trial court's denial of her petition to modify child support in a 1986 divorce case. The primary issue on appeal concerned the trial court's award of only $500 in temporary attorney's fees and costs, which the appellate court found inadequate and reversed.
The trial court's award of $500 in temporary attorney's fees and costs was inadequate and must be reversed and remanded. The wife's needs and husband's ability to pay are apparent from the record, the liquidated costs alone exceeded the amount awarded, and the record supports a greater attorney's fee award.
[1] A trial court's order denying a petition for modification of a final judgment may be affirmed in all respects except for its ruling on temporary attorney's fees and costs…
[2] An award of temporary attorney's fees and costs pending appeal may be reversed and remanded if the amount awarded is inadequate, even if the appellate court disagrees wit…
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Join FLexlaw to unlock all legal intelligence“From our perusal of the record, we conclude that the wife's needs and the husband's ability to pay are apparent.”
Establishes the court's factual findings supporting the inadequacy of the fee award based on the statutory factors of need and ability to pay.
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Join FLexlaw to unlock all legal intelligenceThe parties' marriage was dissolved in 1986 by final judgment incorporating a separation agreement regarding child support, visitation, and alimony. C…
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DOWNEY, JAMES C., Senior Judge.
Appellant, the former wife (hereinafter referred to as such), has perfected this appeal to review an order of the trial court denying her most recent petition for modification.
The marriage of the parties was dissolved in 1986 by final judgment, which incorporated a separation agreement pertaining to child support, visitation, alimony and other related matters. This is but one of a number of attempts by the former wife to modify the final judgment. The order under consideration, entered after an evidentiary hearing, denies an increase in child support and rules upon appellant’s request for attorney’s fees and costs in this proceeding.
Appellant has presented six appellate questions for review, none of which present reversible error except the final point pertaining to the trial court’s order on temporary fees and costs.
While this appeal was pending, appellant sought an allowance of temporary fees and costs from the trial court and obtained an order of this court temporarily relinquishing jurisdiction to the trial court to consider the request for fees and costs. After an evidentiary hearing thereon, the trial court granted appellant $500 without designating whether said sum was for fees or costs. Appellant contends this award was grossly inadequate because, she argues, the record contains uncontradicted evidence showing the value of the services and that the amount of costs expended were far in excess of the amount awarded.
While we do not agree with appellant’s assessment of the record or the amount she claims was due for her attorney’s fees, we do agree that the amount awarded was inadequate. From our perusal of the record, we conclude that the wife’s needs and the husband’s ability to pay are apparent. The costs claimed were actually liquidated and said amount alone exceeds the amount awarded for fees and costs. Furthermore, the record supports an attorney’s fee award greater than $500.
If we were confronted solely with the motion to review the trial court’s order allowing temporary attorney’s fees and costs pending appeal, we would reverse that order and remand for further consideration and allowance of such fees and costs. However, at this late date we are now presented with a motion for an allowance of attorney’s fees and costs for the entire appellate proceeding, which would seem to subsume the request for temporary appellate fees and costs.
Since we reverse the order for temporary fees and costs under review and we now grant appellant’s motion for appellate attorney’s fees and costs for the entire appellate proceeding, we remand to the trial court for a determination of the amount of said fees and costs.
We affirm the order appealed from in all other respects.
GUNTHER, J., concurs.
POLEN, J., concurs in part and dissents in part with opinion.
POLEN, Judge,
concurring in part and dissenting in part.
I agree with that portion of the majority opinion which holds that the only issue raised by appellant former wife, Catherine Martin, that has some merit pertains to the trial court’s award of temporary attorney’s fees and costs during this appeal. It appears that the appellant showed entitlement to some $885 in costs in addition to any temporary fees awarded. However, I disagree with the majority that it was error to award only $500 as temporary attorney’s fees. I further disagree that appellant should be entitled to all her attorney’s fees for this appeal. I would remand to the trial court with instructions to award the former wife her appellate costs, including the $885 mentioned above, plus whatever portion of her appellate attorney’s fees the trial court might find appropriate, considering her need, the former husband’s ability to pay, and all other factors governing such awards. To that extent, I dissent.