JOHN B. DAILEY
v.
DOROTHY STEWART DAILEY
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In this divorce case, the Florida Supreme Court reversed a trial court's refusal to allow a husband to voluntarily dismiss his own divorce proceeding. The Court held that while a trial court may condition dismissal on payment of the wife's reasonable attorney's fees and costs, it cannot unconditionally refuse dismissal absent special equitable circumstances demonstrating manifest injustice to the wife.
A trial court may not unconditionally refuse a husband's motion for voluntary dismissal of a divorce suit. The court must ascertain and allow a reasonable attorney's fee for the wife's counsel and require its payment along with accrued costs as a condition of permitting dismissal. However, the court may only refuse dismissal if special equitable considerations demonstrate that voluntary dismissal would result in manifest unjust advantage to the husband.
“the chancellor should ascertain and allow a reasonable attorney's fee for the wife's solicitor and require its payment, together with all accrued costs, as a condition of permitting the husband's voluntary dismissal of his suit”
Establishes the proper remedy when a wife's counsel has provided valuable services in resisting a divorce—the court should condition dismissal on payment of attorney's fees and costs rather than refuse dismissal outright.
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Join FLexlaw to unlock all legal intelligenceThe husband sought to voluntarily dismiss his pending divorce proceeding. The wife had employed counsel to advise her on her rights and to resist the …
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On appeal from an order of the Circuit Court refusing plaintiff’s petition to voluntarily dismiss his own divorce proceeding, it appears that under the circumstances shown by the record to exist at the time plaintiff’s voluntary dismissal was applied for, the motion to dismiss was erroneously denied.
In cases for divorce where the wife employs counsel to advise her as to her rights and to resist on her behalf the prosecution of the pending divorce proceeding upon jurisdictional grounds, and counsel thereupon appears and renders valuable legal aid and services in the wife’s behalf that result in a determination on the husband’s part to voluntraily abandon his own suit for divorce, and the husband thereupon moves to voluntarily dismiss his own cause, the chancellor should ascertain and allow a reasonable attorney’s fee for the wife’s solicitor and require its payment, together with all accrued costs, as a condition of permitting the husband’s voluntary dismissal of his suit and may refuse permission for such dismissal until such attorney’s fee and costs are paid by plaintiff, but such Chancellor should not unconditionally refuse leave to dismiss the cause at the husband’s option, unless other and additional special equitable considerations are made to appear that demonstrate that a voluntary dismissal of the cause at the time applied for, will result in some manifest unjust advantage being taken of the wife thereby. In this case no such equitable considerations were shown, so the motion to dismiss should not have been unconditionally refused.
The order appealed from is reversed with directions to grant a dismissal of the proceeding below upon the terms and conditions set forth in this opinion.
*280Whitfield, C. J., and Brown, J., concur.
Ellis, P. J., and Terrell and Buford, J. J., concur in the opinion and judgment.
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Tinsley v. Tinsley, 116 So. 2d 649 (Fla. 3d DCA 1959)…or the wife to procure the services of attorneys and they were successful in defending the divorce action brought against her in the courts of this state, they would be entitled to a reasonable attorney’s fee for such services. See Dailey v. Dailey, 123 Fla. 278, 166 So. 564; Barkley v. Barkley, Fla.1949, 42 So. 2d 51. Accordingly, the order denying the appellant’s motion to dismiss the cross complaint for separate maintenance is reversed, with directions to dismiss the cross com [*653] plaint. Further, th…