KATHERINE B. FABRE, F/K/A MARY K. LEVINE, FORMER WIFE, APPELLANT,
v.
JOSEPH E. LEVINE, FORMER HUSBAND, APPELLEE
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Katherine Fabre appealed a trial court's denial of her petition to relocate with her children to South Carolina and its award of only 60% of her attorney's fees. The court affirmed the denial of relocation but reversed the partial fee award, holding that attorney's fees in domestic relations cases depend on financial resources, not litigation success.
The trial court did not abuse its discretion in denying the relocation petition and therefore that decision is affirmed. However, the trial court abused its discretion in awarding only 60% of attorney's fees, as such awards in domestic relations cases depend on the parties' relative financial resources, not on who prevails.
[1] A custodial parent seeking to relocate children with them is not barred from obtaining a modification upon a showing of a substantial change in circumstances and that rel…
[2] A court's ruling on the substantial change in circumstances and best interests of a child regarding relocation will not be disturbed absent a showing of legal error or an…
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Join FLexlaw to unlock all legal intelligence“even then, the custodial parent is not barred from obtaining a modification upon a showing of a substantial change in circumstances, and that it would be in the best interests of the child or children to relocate”
Establishes the legal standard for relocation modifications in custody cases
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Join FLexlaw to unlock all legal intelligenceKatherine Fabre sought to relocate to South Carolina with her new husband and minor children from her prior marriage to Joseph Levine. The trial court…
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ERVIN, Judge.
Appellant, Katherine B. Fabre, seeks review of a final order denying her petition for modification of the judgment of dissolution of marriage. In her petition, appellant sought permission to relocate to South Carolina with her new husband and the minor children born of her prior marriage to appellee, Joseph E. Levine. She also seeks review of an order directing that appellee pay only 60 percent of her attorney’s fees.
We affirm as to the modification issue, but reverse on the latter. Restriction on the removal of children from a particular area may be necessary to preserve parental rights, and the courts retain the power to restrict movement of children out of a particular county or state. There is no restriction on a change in residence unless a restriction is contained in the final judgment of dissolution, and, even then, the custodial parent is not barred from obtaining a modification upon a showing of a substantial change in circumstances, and that it would be in the best interests of the child or children to relocate. McIntyre v. McIntyre, 452 So. 2d 14, 20 (Fla. 1st DCA 1984).
See also Cole v. Cole, 530 So. 2d 467, 468 (Fla. 5th DCA 1988).
As to the question of substantial change in circumstances and the child’s best interests, this court is not at liberty to disturb the trial court’s ruling on these issues in the absence of a showing of legal error or an abuse of discretion, which requires a lack of competent, substantial evidence to sustain the trial court’s findings. Dinkel v. Dinkel, 322 So. 2d 22, 24 (Fla.1975); Parker v. Parker, 519 So. 2d 673, 675 (Fla. 1st DCA), review dismissed, 531 So. 2d 1354 (Fla.1988); McIntyre, 452 So. 2d at 20.
In the instant case, we do not find in the record the existence of any legal error or abuse of discretion by the trial judge in denying appellant’s modification/relocation petition, and we therefore affirm on such issue. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). And see, e.g., Ferguson v. Baisley, 593 So. 2d 319 (Fla. 4th DCA 1992) (no abuse of discretion in denying mother’s petition to relocate children to New Mexico).
Turning to the attorney-fee issue, Florida case law has repeatedly stated that an award of fees in a domestic relations proceeding is not dependent upon who prevails, but rather on the relative financial resources of the parties. Mulford v. Sullivan, 560 So. 2d 1364, 1366 (Fla. 1st DCA 1990); Kissinger v. Mason, 436 So. 2d 1049, 1051 (Fla. 1st DCA 1983); Hudgens v. Hudgens, 411 So. 2d 354 (Fla. 2d DCA 1982). In the instant case, the trial court correctly found that appellant had financial need and appellee had the ability to pay appellant’s attorney’s fees, yet it directed appellee to pay only 60 percent of the fees, because appellant did not prevail on the relocation issue. Such a ruling constitutes an abuse of discretion. Mulford, Hudgens.
Consequently, we reverse and remand with directions to enter an order directing appel-lee to pay the entire fee and costs.
We provisionally grant appellant’s petition for attorney’s fees and costs at the appellate level and remand to the trial court to determine the amount of such an award. Dresser v. Dresser, 350 So. 2d 1152 (Fla. 1st DCA 1977).
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.
MINER and WOLF, JJ., concur.
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Citator
Cited By (11 total)
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Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997)…cessors; that purpose is to ensure that both parties will have reasonably the same ability to secure competent legal counsel.”); White v. White, 683 So. 2d 510 (Fla. 4th DCA 1996); Brock v. Brock, 654 So. 2d 163 (Fla. 1st DCA 1995); Fabre v. Levine, 618 So. 2d 317 (Fla. 1st DCA), review denied, 629 So. 2d 132 (Fla.1993); Allen v. Heinrich, 623 So. 2d 540 (Fla. 2d DCA 1993); Chertoff v. Chertoff, 553 So. 2d 179 (Fla. 3d DCA 1989); Hudgens v. Hudgens, 411 So. 2d 354 (Fla. 2d DCA 1982). As these cases reflect, s…1 / 2
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Lowman v. Lowman, 724 So. 2d 648 (Fla. 2d DCA 1999)…ile the fees are being paid. Where there is a substantial disparity between the parties’ incomes, it may be an abuse of discretion to grant' a partial attorneys’ fee award. See Anciaux v. Anciaux, 666 So. 2d 577 (Fla. 2d DCA 1996); Fabre v. Levine, 618 So. 2d 317 (Fla. 1st DCA 1993) (award of fees in domestic relations proceedings is not dependent upon who prevails, but rather on relative resources of parties). In light of Mr. and Mrs. Lowman’s disparity in income under the current judgment, we conclude that…
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Pitts v. Richmond B. Pitts, 626 So. 2d 278 (Fla. 1st DCA 1993)…retion in failing to make the increased child support retroactive to the filing date of the petition. An award of attorney’s fees in a domestic relations proceeding is dependent upon the relative financial resources of the parties. Fabre v. Levine, 618 So. 2d 317 (Fla. 1st DCA 1993); Mulford v. Sullivan, 560 So. 2d 1364, 1366 (Fla. 1st DCA 1990). See also Canakaris v. Canakaris, 382 So. 2d 1197, 1205 (Fla.1980). Moreover, it may be an abuse of discretion to award a partial attorney’s fee when the record demo…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Dinkel v. Dinkel, 322 So. 2d 22 (Fla. 1975)
- Peavy v. State, 350 So. 2d 1152 (Fla. 1st DCA 1977)
- Dresser v. Dresser, 350 So. 2d 1152 (Fla. 1st DCA 1977)
- McINTYRE v. Nance Ruth McINTYRE, 452 So. 2d 14 (Fla. 1st DCA 1984)
- Hudgens v. Hudgens, 411 So. 2d 354 (Fla. 2d DCA 1982)
- Cole v. Cole, 530 So. 2d 467 (Fla. 5th DCA 1988)
- Kissinger v. Mason, 436 So. 2d 1049 (Fla. 1st DCA 1983)
- Parker v. Parker, 519 So. 2d 673 (Fla. 1st DCA 1988)
- Mulford v. Sullivan, 560 So. 2d 1364 (Fla. 1st DCA 1990)