GEORGE LEVY, APPELLANT,
v.
LINDA LEVY, APPELLEE
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A former husband sought to modify downward his alimony obligation and appealed the trial court's award of temporary attorney's fees to his former wife. The Florida Fourth District Court of Appeal affirmed the fee award, finding the husband's pattern of discovery resistance and extensive litigation conduct justified the award and demonstrated unreasonable litigiousness.
The award of temporary attorney's fees was proper and affirmed. The trial court did not abuse its discretion in awarding temporary relief, an area where trial judges have broad discretion, particularly where the former husband engaged in a pattern of discovery resistance equivalent to the unacceptable conduct condemned in Mettler v. Mettler.
[1] A trial court has broad discretion in awarding temporary attorney's fees in family law cases.
[2] A party's unreasonable litigiousness and resistance to discovery can support an award of temporary attorney's fees.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“This Court is of the opinion the discovery resistance demonstrated thus far by Former Husband is equivalent to the unacceptable conduct condemned in Mettler v. Mettler, i.e. a pattern of extensive, expensive and needless litigation related to the pretrial discovery process.”
The trial court's rationale for awarding temporary attorney's fees based on the husband's pattern of discovery resistance
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Join FLexlaw to unlock all legal intelligenceThe appellant, a physician earning $300,000 annually, is obligated under a marriage settlement agreement (modified four times since the 1982 divorce) …
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KLEIN, Judge.
Appellant is a former husband who is seeking a downward modification of alimony. In connection with that proceeding, the trial court awarded appellee, his former wife, temporary attorney’s fees, which he appeals. We affirm.
Appellant, a physician with an annual income of $300,000, is required by a marriage settlement .agreement, which has already been modified four times since the 1992 divorce, to pay appellee $1,263 a month in permanent alimony. She is employed and earns about $29,000 a year. She also has a net worth of about $400,000 including an equity of $106,000 in her condominium.
Because the court perceived that the husband was being unreasonably litigious and resisting discovery it appointed a special master who confirmed the court’s suspicions. In its order awarding temporary fees, the trial court explained:
This Court is of the opinion the discovery resistance demonstrated thus far by Former Husband is equivalent to the unacceptable conduct condemned in Mettler v. Mettler, [569 So. 2d 496 (Fla. 4th DCA 1990) ] i.e. a pattern of extensive, expen sive and needless litigation related to the pretrial discovery process.
Considering that temporary relief awards “are among the areas where trial judges have the broadest discretion.” Robbie v. Robbie, 591 So. 2d 1006, 1008 (Fla. 4th DCA 1991), and that former husband is only contesting the award of fees, not the amount1, this appeal simply confirms the fact that the former husband is being unreasonably litigious. In fact he does not even argue the litigiousness issue. We therefore affirm the award and by separate order award attorney’s fees to former wife for representation on this appeal.
WARNER and SHAHOOD, JJ., concur. ON MOTION FOR CLARIFICATION
PER CURIAM.
We grant appellant’s motion for clarification and correct our opinion to reflect, in the second paragraph, that the divorce was entered in 1982, not 1992. We deny the motion for rehearing.
WARNER, KLEIN and SHAHOOD, JJ., concur. . Former wife’s counsel is charging her $200 an hour, lower than his normal hourly rate, because of her inability to afford a higher amount. It is refreshing to see counsel in a family law proceeding charge a reasonable amount based on the financial ability of his client, rather than a high hourly rate, which is beyond his client's means, but which he expects to impose on the opposing party. If the input we receive is any guide, there is probably nothing which lowers the public's opinion of the legal profession more than the attorneys’ fees charged by some practitioners in family law cases.
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Sheri Smallwood, Chartered v. Perez, 735 So. 2d 490 (Fla. 3d DCA 1998)…ses such as the one which occurred below. Donoff, 691 So. 2d at [*495] 1093; Tomaino v. Tomaino, 629 So. 2d 874 (Fla. 4th DCA 1993); Kass v. Kass, 560 So. 2d 293 (Fla. 4th DCA 1990); Katz v. Katz, 505 So. 2d 25 (Fla. 4th DCA 1987); see Levy v. Levy, 713 So. 2d 1025, 1026 n. 1 (Fla. 4th DCA 1998); see also Freid v. Freid, 717 So. 2d 145 (Fla. 5th DCA 1998)(Harris, J., concurring). Because I believe that orders like this one should not! only be affirmed but encouraged and replicated, I dissent.…
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Ziskind v. Hart, 731 So. 2d 796 (Fla. 3d DCA 1999)…s and the record, we conclude that the trial court did not abuse its discretion in entering its order granting the former wife’s motion [*797] for temporary attorney’s fees and costs. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Levy v. Levy, 713 So. 2d 1025 (Fla. 4th DCA 1998). We therefore affirm the trial court’s order. Affirmed.…
Authorities Cited
- Dwyn Daniels Robbie v. Robbie, 591 So. 2d 1006 (Fla. 4th DCA 1991)
- Mettler v. Mettler, 569 So. 2d 496 (Fla. 4th DCA 1990)
- Yanks v. Amerifirst Bank, 569 So. 2d 496 (Fla. 3d DCA 1990)