H. DOUGLAS BOHNER, APPELLANT,
v.
JAN D. BOHNER, APPELLEE
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In this family law appeal, the ex-husband challenges the trial court's award of temporary attorney's fees to the ex-wife in connection with his petition to modify alimony. The appellate court affirmed the award, holding that the husband's unnecessary and litigious conduct justified the fee award and that the inclusion of travel time was appropriate given the circumstances.
The trial court properly awarded temporary attorney's fees to the ex-wife because competent substantial evidence supported the husband's ability to pay and his unnecessary and litigious conduct justified requiring him to contribute to the wife's fees. The inclusion of travel time was proper because the husband's vexatious litigation caused the excessive number of hearings, and the trial court did not abuse its discretion in attributing the resulting travel expenses to the husband.
[1] A party seeking temporary attorney's fees must demonstrate a substantial disparity in income compared to the other party.
[2] A party's unnecessary and litigious conduct can justify requiring that party to contribute to the opposing party's attorney's fees.
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Join FLexlaw to unlock all legal intelligence“not only did the wife show that her income was substantially less than that of the husband, the husband's unnecessary and litigious conduct required that the husband contribute to the wife's fees”
Establishes the dual basis for the attorney's fees award: disparity in income and husband's litigious conduct
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Join FLexlaw to unlock all legal intelligenceThe ex-husband filed a petition to modify alimony in August 2006. The ex-wife moved for temporary attorney's fees in February 2007. A general magistra…
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The ex-husband appeals an award of temporary attorney’s fees to the ex-wife in connection with his petition to modify ali*623mony. We agree with the trial court that, not only did the wife show that her income was substantially less than that of the husband, the husband’s unnecessary and litigious conduct required that the husband contribute to the wife’s fees. See Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997). Competent substantial evidence supported the husband’s ability to pay. We affirm.
In awarding attorney’s fees to the wife, the court included time spent by the wife’s attorney travelling from his office in West Palm Beach to the South County Courthouse in Delray Beach. The husband claims the court erred in allowing travel time, relying on the general principle that travel time of attorneys should not be taxed. See Chandler v. Chandler, 330 So.2d 190, 191 (Fla. 2d DCA 1976) (“[W]e are faced with the question of whether Travel time is properly included in an award of attorneys’ fees. We think not.”); see also Statewide Uniform Guidelines for Taxation of Costs in Civil Actions III.D.l. (stating that travel time of attorneys should not be taxed as costs).1 At the hearing before the magistrate, the husband failed to object to the inclusion of travel time and did not raise the issue until after the issuance of the magistrate’s report when he raised it in his objections. The trial court attributed the excessive number of hearings to the litigious conduct of the husband’s counsel and explained that the husband should bear the brunt of the expenses caused by this conduct. Pursuant to Rosen, the trial court did not abuse its discretion in including the additional time expended travelling to hearings caused by the husband’s vexatious litigation.
Finally, the husband objects to the fifteen-month delay from the hearings to the completion of the master’s report, which was adopted by the trial court. “In determining whether a delayed ruling warrants reversal and retrial, the critical determinations are: (1) the existence of conflict between the judge’s statements or findings at trial and the ultimate judgment entered and (2) the presence of unsupported factual findings in the final judgment.” McGoldrick v. McGoldrick, 940 So.2d 1275, 1276 (Fla. 2d DCA 2006).
The delay in the entire proceedings resulting in this temporary award was unusual. The husband filed his petition in August 2006, and the wife moved for temporary attorney’s fees in February 2007. The general magistrate held an evidentia-ry hearing over three separate days, concluding in November 2007, and did not file her recommended report awarding temporary attorney’s fees until October 2008, some fifteen months from the first hearing on attorney’s fees. Notwithstanding the delay, the findings of fact contained in the magistrate’s report are consistent with the testimony adduced at trial. In fact, the magistrate painstakingly, and accurately, described the testimony provided by each and every witness. The minor discrepancies do not affect the substance of the magistrate’s factual findings. The husband cannot satisfy either element listed in McGoldrick.
We affirm the trial court’s award of temporary attorney’s fees to the wife.
POLEN and TAYLOR, JJ., concur.
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Sweeny v. Sweeny, 113 So. 3d 987 (Fla. 5th DCA 2013)…uding travel time for the former wife’s vocational expert, as well as a $1,700 cancellation fee caused by the former wife’s attorney. See In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So. 2d 612, 617 (Fla.2005); Bohner v. Bohner, 24 So. 3d 622, 623 (Fla. 4th DCA 2009); Robbins v. McGrath, 955 So. 2d 633, 635 (Fla. 1st DCA 2007); Chandler v. Chandler, 330 So. 2d 190, 191 (Fla. 2d DCA 1976). On remand, we direct the trial court to enter an amended fee and cost order that deletes these costs…
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Hahamovitch v. Hahamovitch, 133 So. 3d 1062 (Fla. 4th DCA 2014)…ight v. Wright, 577 So. 2d 1355, 1357-58 (Fla. 1st DCA 1991) (wife did not act unreasonably in selecting counsel 60 miles away from her residence, which was located in a small community where the husband was a prominent physician); Bohner v. Bohner, 24 So. 3d 622, 623 (Fla. 4th DCA 2009) (trial court did not abuse its discretion in including the additional time expended traveling to hearings caused by the husband’s vexatious litigation). But in this case no such special circumstances were shown. There was no…
Authorities Cited
- Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997)
- In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So. 2d 612 (Fla. 2005)
- McGOLDRICK v. McGOLDRICK, 940 So. 2d 1275 (Fla. 2d DCA 2006)
- Chandler v. Chandler, 330 So. 2d 190 (Fla. 2d DCA 1976)
- Hopkins v. Zipp Sporting Goods, Inc., 330 So. 2d 190 (Fla. 3d DCA 1976)