ANITA K. WHEELER, N/K/A ANITA K. WINKIS, APPELLANT,
v.
DAVID J. WHEELER, APPELLEE
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The court affirmed a child support modification order but reversed the attorney's fee award because the trial court improperly based fees on child support percentages rather than the statutory need and ability to pay analysis.
Attorney's fees in child support modification proceedings must be determined by analyzing the relative financial circumstances of the parties under section 61.16, Florida Statutes, specifically whether one party has a need for fees and the other has the ability to pay, rather than by apportioning fees according to child support percentages.
[1] Attorney's fees in child support modification proceedings must be determined by analyzing the relative financial circumstances of the parties and whether one party has a…
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Join FLexlaw to unlock all legal intelligenceA former wife appealed an order granting the former husband's petition to modify child support. The trial court found that the former wife had a need …
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SHAHOOD, Judge.
We affirm all issues raised in former wife’s appeal from an order granting former husband’s petition for modification of child support with the exception of the trial court’s award of attorney’s fees to the former wife.
It is well settled that an attorney’s fee determination in dissolution proceedings, including modification proceedings, must be made by considering the relative financial circumstances of the parties as per section 61.16, Florida Statutes, and that the proper inquiry is whether one spouse has a need for such fees and the other has the ability to pay them. Widder v. Widder, 673 So. 2d 954 (Fla. 4th DCA 1996); see Montante v. Montante, 627 So. 2d 554 (Fla. 4th DCA 1993). Although the record indicates that the trial court made a finding that former wife has a need and former husband has an ability to pay, it nevertheless awarded fees based on the percentages of child support that was required to be paid as per the statutory child support guidelines. In light of this court’s recent opinion in Widder, we find that the trial court erred in apportioning the attorney’s fees in accordance with the same percentages as required for child support. Accordingly, we remand this cause for rede-termination of the attorney’s fee award based on need and ability to pay.
Reversed and remanded with directions.
GUNTHER, C.J., and STONE J„ concur.
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Rorrer v. Orban, 215 So. 3d 148 (Fla. 3d DCA 2017)…financial circumstances of the parties as per section 61.16 and the cases interpreting it, and using the appropriate inquiry of whether one party has the need for such fees and the other party has the ability to pay them. Accord Wheeler v. Wheeler, 679 So. 2d 31, 32 (Fla. 4th DCA 1996); see also Lowman v. Lowman, 724 So. 2d 648, 650 (Fla. 2d DCA 1999) (“Where there is a substantial disparity between the parties’ incomes, it may be an abuse of discretion to grant a partial attorneys’ fee award.”); accord Mou…
Authorities Cited
- Revitz v. Terrell, 627 So. 2d 554 (Fla. 3d DCA 1993)
- Widder v. Widder, 673 So. 2d 954 (Fla. 4th DCA 1996)