PATRICIA C. NASH, APPELLANT,
v.
FRANK L. NASH, APPELLEE

Fla. 3d DCA | 1993-09-21
No. 92-657
Before JORGENSON, GERSTEN and GODERICH, JJ.
624 So. 2d 370 Florida District Court of Appeal, Third District (1993) Caution
Cited by 16 cases

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Holding

The court held that summary judgment for the rental company was improper because the contract establishing the government as the lessee was not presented as evidence.


Headnotes

[1] A trial court does not abuse its discretion in allowing unsupervised visitation with children when there is no competent substantial evidence to warrant restricting it.

[2] A trial court has broad discretionary authority to consider any factor necessary to do equity and justice between parties when determining an alimony award.

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Facts & Procedural History

A passenger was injured when a car leased from Thrifty, driven by a government employee, was involved in an accident. The rental company sought immuni…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The wife, Patricia C. Nash, appeals from an amended final judgment for dissolution of marriage. We affirm, in part, reverse, in part, and remand. The wife’s first contention on appeal is that the trial court erred in failing to follow the dictates of section 61.13, Florida Statutes (1991), by not ordering the husband to provide insurance for the minor children where such insurance was reasonably available to the husband through his employer. We do not have to reach the merits of this claim, at this time, since the husband admitted during oral argument that the three minor children of the parties are currently insured under his health insurance policy and he agreed to keep them on his policy.

Next, the wife contends that the trial court erred in allowing the husband to have unsupervised visitation with the children and in not ordering the husband to undergo counseling. We disagree.

“It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities of childrearing.” Section 61.13(2)(b)l, Fla.Stat. (1991). Moreover, “[t]he noncustodial parent should be granted reasonable visitation with a child unless there is proof of extreme circumstances, or the trial court finds that the visitation will adversely affect the welfare of the child.” Johnston v. Boram, 386 So. 2d 1230 (Fla. 5th DCA1980) (citing Chaffin v. Grigsby, 293 So. 2d 404 (Fla. 4th DCA1974)).

In the instant ease, the trial court heard the evidence and the testimony and concluded that there was no competent substantial evidence to warrant restricting the husband’s visitation. See Azar v. Azar, 584 So. 2d 185 (Fla. 4th DCA1991). Based on the record, we find that the trial court did not abuse its discretion either in ordering that the husband have unsupervised visitation with the children or in not requiring that the husband undergo counseling.

The wife also contends that the trial court erred by failing to award her either rehabilitative or permanent alimony. We disagree.

“In determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties.” Section 61.08, Fla.Stat. (1991). “The judge possesses broad discretionary authority to do equity between the parties and has available various remedies to accomplish this purpose.” Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla.1980).

In the instant case, the trial court awarded the wife $15,000.00 in lump sum alimony, to be paid at the rate of $3,000.00 per year for five years. The trial court reached this decision after observing the parties and listening to all the evidence. Based on the record, we find that the trial court did not abuse its discretion in denying the wife’s request for rehabilitative or permanent alimony. Canakaris, 382 So. 2d at 1197.

The wife further contends that the trial court erred in awarding a disproportionate amount of the marital assets to the husband without providing any basis on the record for such an inequitable division. We agree.

The record discloses that two of the real properties were held by the parties as tenants by the entireties. However, the trial court did not make a specific finding as to whether the properties owned by the parties were marital or nonmarital assets and whether the husband was entitled to a special equity in any of the properties. We reverse that portion of the final judgment dealing with the equitable distribution of the marital home and the other real estate owned by the parties and remand for findings pursuant to section 61.075, Florida Statutes (1991). See Robertson v. Robertson, 593 So. 2d 491 (Fla.1991); Glover v. Glover, 601 So. 2d 231 (Fla. 1st DCA1992).

Finally, the wife contends that the trial court erred by failing to award the wife attorney’s fees where there was a finding that the wife was unable to pay such fees and that the husband was in a superior financial position. We agree.

“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 these fees.” Canakaris, 382 So. 2d at 1205. Attorney’s fees should be paid by the party who has the superior finan- eial ability to pay. Canakaris, 382 So. 2d at 1205; Martinez-Cid v. Martinez-Cid, 559 So. 2d 1177 (Fla. 3d DCA1990). In the instant case, the husband’s financial ability is superior to the wife’s financial ability.

We are aware that “[a] party’s financial status should not insulate them from the consequences of their conduct within the judicial system.” Mettler v. Mettler, 569 So. 2d 496, 498 (Fla. 4th DCA 1990) (citations omitted). If a party abuses the legal system, that party should not be allowed to recover legal fees by claiming “diminished financial status as a shield.” Id. However, the wife’s actions, in the instant case, do not amount to “needless, futile and fruitless litigation,” Mettler, 569 So. 2d at 498, or to frivolous post-judgment motions, Sutter v. Sutter, 578 So. 2d 788 (Fla. 4th DCA1991), or to “baseless litigation,” Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, P.A. v. Mullin, 602 So. 2d 956 (Fla. 3d DCA1992), rev. dismissed, 613 So. 2d 7 (Fla.1993), or to an abuse of the judicial process. Thornton v. Byrnes, 537 So. 2d 1088 (Fla. 3d DCA1989).

The record does not support the trial court’s conclusion that the wife’s actions in this case constituted needless litigation. Therefore, the trial court abused its discretion in denying the wife attorney’s fees.

In summary, we affirm the award of lump sum alimony and the trial court’s decision not to order the husband to undergo counseling and allowing him unsupervised visitation with the children; we reverse the distribution of property and remand for a finding as to special equity, if any; and we reverse the denial of attorney’s fees to the wife and remand for a determination of the amount of attorney’s fees to be awarded to the wife.

Affirmed, in part, and reversed in part, and remanded.


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Citator

Cited By

  • Adkins v. Adkins, 650 So. 2d 61 (Fla. 3d DCA 1994)
    …abuse of discretion in the trial court’s denial of attor [*66] ney’s fees for the wife. At the very least, reasonable people may differ as to the propriety of the trial court’s ruling in this respect. See § 61.08(2), Fla.Stat. (1991); Nash v. Nash, 624 So. 2d 370, 371 (Fla. 3d DCA 1993); LaHuis v. LaHuis, 590 So. 2d 557 (Fla. 3d DCA 1991); Antonini v. Antonini, 473 So. 2d 739, 741 (Fla. 1st DCA 1985), rev. denied, 484 So. 2d 7 (Fla.1986). E Finally, the wife contends that the trial court erred in excluding…
  • Oldham v. Oldham, 683 So. 2d 579 (Fla. 4th DCA 1996)
    …ained, because she was not engaged in “needless, futile and fruitless” litigation, frivolous post-judgment motions, “baseless litigation” or otherwise abused the judicial process. Mettler v. Mettler, 569 So. 2d 496 (Fla. 4th DCA 1990); Nash v. Nash, 624 So. 2d 370, 372 (Fla. 3d DCA 1993); Pariser v. Pariser, 636 So. 2d 741 (Fla. 4th DCA 1993). Mettler and Nash do not address the Hoopes /Rowe issue decided in this case. Rather, Mettler concerned the responsibility of the “poorer” party for the “richer” party’s…
  • Arouza v. Goldin C. Arouza, 670 So. 2d 69 (Fla. 3d DCA 1995)
    …an, 593 So. 2d 1153 (Fla. 4th DCA 1992). However, attorney’s fees may be assessed in domestic cases against a party who initiates a baseless cause of action which results in meritless litigation and the unnecessary expenditure of fees, Nash v. Nash, 624 So. 2d 370 (Fla. 3d DCA 1993); Ugarte v. Ugarte, 608 So. 2d 838 (Fla. 3d DCA 1992), cause dismissed, 617 So. 2d 322 (Fla.1993); Sutter v. Sutter, 578 So. 2d 788 (Fla. 4th DCA 1991); Elenewski v. Elenewski, 528 So. 2d 1354 (Fla. 3d DCA 1988), provided that “suc…

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