DARLENE H. ALLEN, F/K/A DARLENE R. HEINRICH, APPELLANT,
v.
WALTER R. HEINRICH, APPELLEE
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In a family law modification case, the Florida appellate court affirmed the trial court's decision in part but reversed regarding attorney's fees and child support income deduction orders. The court held that the trial court abused its discretion by failing to award the former wife attorney's fees despite the substantial income disparity between the parties.
The trial court abused its discretion by failing to award attorney's fees and costs to the former wife, as the award should be based on the relative financial circumstances of the parties rather than who prevails in the litigation. The court also erred by failing to require an income deduction order for child support and by not addressing the former wife's request for a financial accounting of the marital home.
[1] An award of attorney's fees in dissolution proceedings is based on the relative financial circumstances of the parties, not on who prevails.
[2] A trial court abuses its discretion by failing to award attorney's fees and costs to a former spouse when there is a significant disparity in the parties' financial circu…
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Join FLexlaw to unlock all legal intelligence“The purpose of awarding attorney's fees is to insure that both parties have a similar ability to obtain legal counsel.”
Establishes the foundational principle that attorney's fees are awarded based on financial circumstances to equalize legal access
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Join FLexlaw to unlock all legal intelligenceThe parties were formerly married and filed petitions to modify their final judgment of dissolution of marriage. Following the dissolution, the former…
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DANAHY, Acting Chief Judge.
The former wife challenges the amended final judgment entered on the parties’ petitions for modification of their final judgment of dissolution of marriage. We affirm in part and reverse in part.
We agree with the former wife that the trial court erred in failing to award her attorney’s fees and costs. She points out that the purpose of awarding attorney’s fees is to insure that both parties have a similar ability to obtain legal counsel. Mertz v. Mertz, 287 So. 2d 691 (Fla. 2d DCA 1973). The award of attorney’s fees depends not on who wins, but rather on the relative financial circumstances of the parties. Hudgens v. Hudgens, 411 So. 2d 354 (Fla. 2d DCA 1982).
Since the dissolution of the parties’ marriage, the former husband has become a county judge earning $76,851 per year. Even imputing to the former wife past earnings of $24,000, the former husband’s earnings are three times greater than the imputed income to the former wife. We reject the former husband’s argument that the former wife should be required to meet her obligation for attorney’s fees by application of her separate assets.
Because we believe the trial court abused its discretion in this regard, we reverse the final judgment to the extent that it fails to award the former wife attorney’s fees and costs.
The former wife also complains that the trial court failed to require payment of child support by an income deduction order. The former husband concedes this issue and agrees to the entry of an income deduction order. Accordingly, we reverse the final judgment on this point and remand for the entry of an income deduction order. The trial court failed to rule at all with respect to the former wife’s request for a financial accounting as to the former marital home. We agree with the former wife that the trial court erred in not addressing a matter raised by her pleadings. Our disposi tion of this cáse is without prejudice to the former wife’s pursuing her claim for an accounting before the trial court and for the entry of an appropriate ruling by the trial court on that issue.
We affirm the final judgment in all respects other than those addressed in this opinion.
Affirmed in part, reversed in part, and remanded.
HALL and PATTERSON, JJ., concur.
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Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997)…o 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, section 61.16 has long been interpreted to require a judge to consider the needs of the party…1 / 2
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Pignataro v. Ara Rutledge, 841 So. 2d 636 (Fla. 2d DCA 2003)…that these issues were withdrawn from the trial court’s consideration before the final hearing. When issues raised by the pleadings are properly before the trial court, it is error for the trial court to fail to rule on them. See Allen v. Heinrich, 623 So. 2d 540 (Fla. 2d DCA 1993). Therefore, we remand for further proceedings on these issues. Finally, while we are remanding for further consideration on three issues, we note that the trial court does not necessarily have to conduct a new hearing. Because we…
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Winn v. Winn, 669 So. 2d 1155 (Fla. 5th DCA 1996)…a. 3d DCA 1995); Mitzenmacher v. Mitzenmacher, 656 So. 2d 178 (Fla. 3d DCA 1995); Hann v. Hann, 629 So. 2d 918 (Fla. 2d DCA 1993). . Hamlet v. Hamlet, 583 So. 2d 654 (Fla.1991); Pitts v. Pitts, 626 So. 2d 278 (Fla. 1st DCA 1993); Allen v. Heinrich, 623 So. 2d 540 (Fla. 2d DCA 1993); Lochridge v. Lochridge, 526 So. 2d 1010 (Fla. 2d DCA 1988). . Overbey v. Overbey, 664 So. 2d 351 (Fla. 5th DCA 1995); Naugle v. Naugle, 632 So. 2d 1146 (Fla. 5th DCA 1994); Schiller v. Schiller, 625 So. 2d 856 (Fla. 5th DCA 1993…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hudgens v. Hudgens, 411 So. 2d 354 (Fla. 2d DCA 1982)
- Hernandez v. Hernandez, 287 So. 2d 691 (Fla. 2d DCA 1973)
- Mertz v. Mertz, 287 So. 2d 691 (Fla. 2d DCA 1973)