DAVID ST. PIERRE, APPELLANT,
v.
SUSAN R. GREENBERG F/K/A SUSAN R. ST. PIERRE, APPELLEE
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In a child support enforcement case, the Fourth District Court of Appeal affirmed the trial court's modification of child support and imposition of a pay schedule for arrearage, but reversed the assessment of attorney's fees against the appellant because the trial court failed to consider his ability to pay those fees before imposing them.
A trial court must consider both the need of the movant and the ability of the recalcitrant party to pay attorney's fees before assessing such fees. The trial court abused its discretion by failing to consider appellant's ability to pay before imposing the attorney's fees assessment.
[1] A trial court abuses its discretion by assessing attorney's fees against a party without considering that party's ability to pay.
[2] A trial court may consider a party's willful refusal to comply with a child support order when assessing attorney's fees if that conduct necessitated enforcement litigati…
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Join FLexlaw to unlock all legal intelligence“In assessing attorney's fees against a party, a trial court may consider that party's willful refusal to comply with an existing order if that conduct made further litigation necessary for enforcement.”
Establishes the legal basis for imposing attorney's fees as a sanction, citing Patterson v. Patterson.
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Join FLexlaw to unlock all legal intelligenceAppellant David St. Pierre's ex-wife Susan R. Greenberg brought suit to enforce payment of child support arrearage amounts. The trial court ordered St…
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PER CURIAM.
Appellant appeals an order modifying child support, imposing a pay schedule for child support arrearage amounts, and assessing attorney’s fees against him. We affirm in part and reverse in part.
The trial court ordered Appellant to pay the attorney’s fees incurred by his ex-wife when she brought suit to enforce payment of child support arrearage amounts. Appellant argues that the trial court failed to consider his ability to pay the fees. In assessing attorney’s fees against a party, a trial court may consider that party’s willful refusal to comply with an existing order if that conduct made further litigation necessary for enforcement. See Patterson v. Patterson, 399 So. 2d 73 (Fla. 5th DCA 1981). In doing so, however, the trial court must still consider the need of the movant and the ability of the recalcitrant party to pay the movant’s fees. See id. at 74-75; see also § 61.16, Fla. Stat. (1995); Warnhoff v. Warnhoff, 493 So. 2d 52 (Fla. 4th DCA 1986).
Appellant does not challenge his ex-wife’s need for assistance in paying her attorney’s fees. Appellant argues only that the record appears void of any evidence of his ability to pay the fees assessment against him. We agree. Neither party can show this Court where in the record it is evidenced that the trial court considered Appellant’s ability to pay his ex-wife’s attorney’s fees. Instead, there is evidence to the contrary, in that the trial court stated on the record that it did not know how Appellant could pay all the amounts assessed against him. By failing to consider Appellant’s ability to pay before assessing the fees against him, the trial court abused its discretion. See § 61.16; Warnhoff, 493 So. 2d at 52.
Accordingly, we reverse that portion of the trial court’s order assessing attorney’s fees against Appellant and remand for further proceedings consistent with this opinion. We also order the trial court to correct its mathematical errors made when modifying the child support amount. In all other respects, we affirm.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
STONE, C.J., and GUNTHER and FARMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Arizona L. Sumlar v. Sumlar, 827 So. 2d 1079 (Fla. 1st DCA 2002)…nd’s misconduct in procuring property settlement agreement, yet record indicated former wife was not blameless and her negligence played part in way case progressed); McAliley v. McAliley, 704 So. 2d 611 (Fla. 4th DCA 1997); St. Pierre v. Greenberg, 697 So. 2d 218, 219 (Fla. 4th DCA 1997) (recognizing that “[i]n assessing attorney’s fees against a party, a trial court may consider that party’s willful refusal to comply with an existing order if that conduct made further litigation necessary for enforcement.”)…
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Zanone v. Clause, 848 So. 2d 1268 (Fla. 5th DCA 2003)…ne’s “over-litigation” of his paternity suit would qualify as a factor to be considered in awarding fees under section 742.045. This factor does not, however, abrogate the requirement that Zanone have the ability to pay. See St. Pierre v. Greenberg, 697 So. 2d 218, 219 (Fla. 4th DCA 1997) (“In assessing attorney’s fees against a party, a trial court may consider that party’s willful refusal to comply with an existing order if that conduct made further litigation necessary for enforcement. In doing so, however…
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Rosa v. Rosa, 723 So. 2d 312 (Fla. 4th DCA 1998)…We disagree with the mother’s first argument that her negative net worth and negative net income require reversal of the award of fees. Although need and ability to pay are things which the trial court must [*313] consider, St. Pierre v. Greenberg, 697 So. 2d 218 (Fla. 4th DCA 1997), the mother’s financial condition does not end the discussion. As Judge Polen explained in Mettler v. Mettler, 569 So. 2d 496, 498 (Fla. 4th DCA 1990): While the purpose of considering the parties’ finances in awarding attorney’…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Patterson v. Patterson, 399 So. 2d 73 (Fla. 5th DCA 1981)
- Warnhoff v. Warnhoff, 493 So. 2d 52 (Fla. 4th DCA 1986)