FRANCES MARION ASH, APPELLANT,
v.
WILLIAM SHERMAN ASH, APPELLEE
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The court held that the trial court correctly terminated the housing allowance based on the parties' subsequent agreement and affirmed the attorney's fee award.
The former wife appealed an order terminating a $150 monthly housing allowance. The parties' final decree was based on an agreement, later amended. Th…
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The former wife appeals a post final decree order which terminated an allowance in the final decree. The property and the financial section of the final decree were based upon an agreement' between the parties. Subsequent to the final decree, the parties amended certain provisions by a further agreement. The former husband filed a petition for modification or construction of the agreement between the parties. The court found for the petitioner and terminated an allowance of $150.00 a month for housing for the former wife, who has remarried, and minor child. The basis for the ruling was a construction of the subsequent agreement so that a provision of the final decree, providing for termination of the payment upon remarriage of the former wife, was carried forward and included in the amendment.
The language of the agreement clearly supports the conclusion of law reached by the chancellor. We therefore affirm the order appealed. See Clark v. Clark, Fla.1955, 79 So.2d 426.
The appellee, former'husband, has cross assigned error upon the allowance of an attorney’s fee to the former wife. It is urged that the proceeding was not one for modification but, was to construe the agreement of the parties. Inasmuch as the husband’s petition sought modification as well as clarification, the wife was entitled to an attorney’s fee to resist the petition to modify the child support provisions of the final decree. We affirm the allowance of the fee upon the authority of Simpson v. Simpson, Fla.1953, 63 So.2d 764, and Teply v. Key, Fla.App.1963, 158 So.2d 549.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Colbath v. Colbath, 268 So. 2d 361 (Fla. 1972)…cases, and several cases reversing a lower court’s denial of attorneys’ fees. One case cited by the District Court ruled that, considering the circumstances of the case, the successfully defending wife was “entitled” to attorneys’ fees. Ash v. Ash, 193 So. 2d 677 (Fla.App.3d, 1967). The District Court, in the case sub judice, reasoned that the almost automatic allowance of attorneys’ fees had created a statutory right to attorneys’ fees where a divorced wife successfully defends an attempt to modify a final…
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Colbath v. Colbath, 258 So. 2d 50 (Fla. 2d DCA 1972)….App.1968), 206 So. 2d 234; Salomon v. Salomon (Fla.App.1966), 186 So. 2d 39; and Hood v. Hood (Fla.App.1958), 100 So. 2d 422. Cases which affirm the granting of such fees also sometimes speak in terms of entitlement. See, Ash v. Ash (Fla.App.1967), 193 So. 2d 677. . See, e. g., McNeill v. McNeill, n. 3, supra. Ettinger v. Ettinger, n. 3, supra; and cases cited in n. 4, supra. . However, before there was statutory authority, eases disallowed such award. See, Vinson v. Vinson (1939) 139 Fla. 146, 190 So. 454…
Authorities Cited
- Alyce Clark v. Clark, 79 So. 2d 426 (Fla. 1955)
- Simpson v. Simpson, 63 So. 2d 764 (Fla. 1953)
- Teply v. Gertrude KEY, 158 So. 2d 549 (Fla. 3d DCA 1963)