AMELIA ELIZABETH MCALLISTER
v.
ROBERT EDGAR MCALLISTER
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Florida Supreme Court denied certiorari in a divorce case where the defendant sought attorneys' fees and suit money before the merits were adjudicated. The Court held that petitions for counsel fees and suit money under Section 4986 should be decided before the defendant is required to defend on the merits.
The Court held that under Section 4986, a petitioner entitled to counsel fees and suit money should have this petition settled before the defendant is required to enter and begin her defense on the merits. The chancellor should first determine whether the defendant lacks sufficient means to support herself and employ counsel, and whether the husband has means to supply this necessity.
“a petitioner is entitled to counsel fees and suit money if her petition therefor shows that she lacks sufficient means to support herself during the litigation and with which to employ counsel. It must be further shown that the husband has means to supply this necessity.”
Establishes the statutory requirements under Section 4986 for obtaining attorneys' fees and suit money in divorce proceedings.
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Join FLexlaw to unlock all legal intelligenceRobert Edgar McAllister brought suit for divorce against Amelia Elizabeth McAllister. The defendant petitioned the Court for allowance of attorneys' f…
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Robert Edgar McAllister brought suit for divorce against Amelia Elizabeth McAllister. The defendant petitioned the Court for an allowance of attorneys’ fees and suit money as authorized by Section 4986. Compiled General Laws of 1927. Before the latter petition' was ruled on, the chancellor referred the cause to a special master to take testimony on the merits.
Petition for certiorari was filed in this Court, the usual *208notice was given, and an order was granted staying all proceedings in the court below until the petition for certiorari is disposed of. Should the petition for suit money and attorneys’ fees have been adjudicated before taking testimony on the merits, is the question presented. The sufficiency of the bill is also challenged.
Under Section 4986, Compiled General Laws of 1927, a petitioner is entitled to counsel fees and suit money if her petition therefor shows that she lacks sufficient means to support herself during the litigation and with -which to employ counsel. It must be further shown that the husband has ' mean's to supply this necessity. The chancellor may exercise his discretion about determining these matters but they should be settled before the defendant is required to enter and begin her defense. We find in the record an order of reference to take testimony on this point. We will not assume that the chancellor will not have this evidence taken and dispose of the petition for counsel’s fees and suit money in due course. The bill of complaint is not amenable to the assault made on it.
It is therefore ordered, adjudged, and decreed, that the petition for certiorari be and is hereby denied.
It is so ordered.
Terrell, C. J., Whitfield, Buford, Chapman and Thomas, J. J., concur.
Justice Brown not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
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Mandina v. Davidson, 171 So. 2d 906 (Fla. 3d DCA 1965)…PER CURIAM. Affirmed upon authority of McAllister v. McAllister, 140 Fla. 207, 191 So. 303 (1939); Jacobs v. Jacobs, Fla.1951, 50 So. 2d 169.…
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Teddle Scherer v. Moe Scherer, 150 So. 2d 496 (Fla. 3d DCA 1963)…aintiff-wife attorney’s fees and discovery costs pendente lite was, it seems to me, an abuse of discretion. I would reverse in part and remand with directions to make such provision and allow a reasonable time before trial. McAllister v. McAllister, 140 Fla. 207, 191 So. 303.…
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Vecsey v. Vecsey, 100 So. 2d 437 (Fla. 3d DCA 1958)…tatutory basis for such an order is established, an appellate court will not substitute its judgment for that of the Chancellor unless a clear abuse of discretion is made to appear. Floyd v. Floyd, 91 Fla. 910, 108 So. 896; McAllister v. McAllister, 140 Fla. 207, 191 So. 303. The briefs and appendices failing to establish an abuse of discretion on the part of the Chancellor, the order is affirmed. Affirmed. CARROLL, CHAS., C. J., HORTON and PEARSON, JJ., concur.…
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