HORACE M. WHITTLESEY, JR., APPELLANT,
v.
ESTELLE M. WHITTLESEY, N/K/A ESTELLE MIRANDE, APPELLEE
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In a dissolution of marriage case, the trial court awarded the Wife $82,752.28 in attorney's fees based on an equitable distribution scheme that was previously reversed on appeal. The appellate court reverses the fee award and remands for reconsideration under the new equitable distribution scheme established on remand.
The trial court's determination of entitlement to attorney's fees must be reversed because it was based on the equitable distribution scheme that was previously reversed. The court declines to address the reasonableness and necessity of the fees, which remain undisturbed. Issues regarding prior payments and payment timing are moot pending reconsideration on remand.
[1] A trial court's determination of entitlement to attorney's fees in a dissolution of marriage action must be reversed if it is premised on an equitable distribution scheme…
[2] Reversal of an attorney's fee award based on entitlement does not automatically require reversal of the trial court's findings as to the reasonableness and necessity of t…
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Join FLexlaw to unlock all legal intelligence“Because the trial court's determination of entitlement to fees was based on the now reversed equitable distribution scheme, the trial court's determination of entitlement to fees must also be reversed.”
Establishes the core holding that the fee entitlement award must be reversed because it depended on a reversed equitable distribution scheme.
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Join FLexlaw to unlock all legal intelligenceAfter a final judgment of dissolution of marriage was entered, the Wife appealed certain aspects of the equitable distribution and alimony awards. In …
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DAVIS, Judge.
In this action for attorney’s fees arising out of dissolution of marriage proceedings, Horace M. Whittlesey, Jr. (the Husband), challenges the trial court’s order granting the motion of Estelle M. Whittlesey, n/k/a Estelle Mirande (the Wife), requesting $82,752.28 in attorney’s fees and costs. The Wife concedes that reversal is required.
After the trial court entered a final judgment of dissolution of marriage, the Wife appealed, raising several issues regarding the equitable distribution and alimony awards. In Whittlesey v. Whittle- sey, 954 So. 2d 1231 (Fla. 2d DCA 2007), this court reversed and remanded based on the determination that the trial court had used the wrong cutoff date for valuing the parties’ assets. However, in awarding the Wife $82,752.28 in attorney’s fees, the trial court had premised its determination of entitlement on the Wife’s need and the Husband’s ability to pay those fees under the original equitable distribution scheme, which this court has now reversed. Because the trial court’s determination of entitlement to fees was based on the now reversed equitable distribution scheme, the trial court’s determination of entitlement to fees must also be reversed. Accordingly, we reverse and remand with directions to the trial court to reconsider the issue of entitlement to attorney’s fees in light of the equitable distribution scheme established on remand from Whittlesey, 954 So. 2d 1231.
Although the Husband contends that the trial court’s findings as to the reasonableness and necessity of the fees should also be reversed, we disagree. Our opinion in Whittlesey did not implicate the trial court’s findings as to the reasonableness and necessity of the fees accrued prior to September 18, 2006; only the entitlement to those fees was affected. We decline to address the reasonableness and necessity of the fees.
The Husband also claims that the trial court improperly failed to reduce the attorney’s fee award by amounts that he previously paid. In light of our decision to reverse the attorney fee award, this issue is moot. However, the Husband may raise this issue on remand when the trial court reconsiders the issue of entitlement to fees.
Finally, the Husband argues that the trial court erred in requiring him to pay the attorney’s fee award within twenty days of the date of the decision. This issue is moot as well given our decision to vacate the fees awarded and remand for reconsideration of the issue of entitlement to fees.
Reversed and remanded.
ALTENBERND and STRINGER, JJ., Concur.
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Ter Keurst v. Ter Keurst, 202 So. 3d 123 (Fla. 2d DCA 2016)…gment, however, may result in recalculations that affect this decision. Accordingly, the trial court should reconsider each parties’ need under section 61.16 following its equitable distribution recalculation on remand. See Whittlesey v. Whittlesey, 971 So. 2d 1040, 1042 (Fla. 2d DCA 2008) (“Because the trial court’s determination of entitlement to fees was based on the now reversed equitable distribution scheme, the trial court’s determination of entitlement to fees must also be reversed.”). [*129] Conclusion…
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Wynona Gale Dwyer v. Dwyer, 981 So. 2d 1254 (Fla. 2d DCA 2008)…evisit the equitable distribution award, the parties’ relative financial circumstances may change. Therefore, we reverse the trial court’s denial of the Wife’s request for attorney’s fees and remand for reconsideration. See Whittlesey v. Whittlesey, 971 So. 2d 1040, 1041 (Fla. 2d DCA 2008) (reversing the trial court’s decision as to entitlement to attorney’s fees and remanding the issue for reconsideration because the equitable distribution scheme had been reversed in an earlier appeal and the fee issue had to…
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LEE v. Katja LEE (Fla. 2d DCA 2022)…ard of attorneys' fees and costs to the Former Wife and remand for the trial court to reconsider each party's need and ability to pay under section 61.16 following its newly calculated equitable distribution on remand. See Whittlesey v. Whittlesey, 971 So. 2d 1040, 1042 (Fla. 2d DCA 2008) ("Because the trial court's determination of entitlement to fees was based on the now reversed equitable distribution scheme, the trial court's determination of entitlement to fees must also be reversed."). IV. Finally, with…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whittlesey v. Whittlesey, 954 So. 2d 1231 (Fla. 2d DCA 2007)